Federal Register / Vol. 74, No. 57 / Thursday, March 26, 2009 / Rules and Regulations 13099 

1 Mohawk sells a line of carpets manufactured 

from PTT under the trademark SmartStrand®. 

DuPont markets PTT under the trademark Sorona®. 

PTT Canada markets PTT under the trademark 

Corterra® Polymers. 

2 16 CFR 303.7(c). Rule 7(c) defines ‘‘polyester’’ 

as ‘‘a manufactured fiber in which the fiber-forming 

substance is any long chain synthetic polymer 

composed of at least 85% by weight of an ester of 

a substituted aromatic carboxylic acid, including 

but not restricted to substituted terephthalate units, 

and para substituted hydroxy-benzoate units.’’ 

3 The Petition is available in electronic form at: 

(http://www.ftc.gov/os/statutes/textile/info/ 

PTTGenAppRev8-30-06.pdf). The Petition, as well 

as any comments filed in this proceeding, are 

available for public inspection in accordance with 

the Freedom of Information Act, 5 U.S.C. 552, and 

the Commission’s Rules of Practice, 16 CFR 4.11, 

at the Consumer Response Center, Public Reference 

Section, Room 130, Federal Trade Commission, 600 

Pennsylvania Avenue, NW, Washington, DC. 

4 These questions addressed improving the 

legibility of some data and identifying the KruskalWallis test as a statistical analysis rather than a 

carpet human traffic test. 

5 72 FR 48600 (Aug. 24, 2007). 

6 Comments filed in this rulemaking can be found 

under the Rules and Regulations Under the Textile 

Fiber Products Identification Act, 16 CFR Part 303, 

Matter No. P074201, ‘‘Mohawk, DuPont, and PTT 

Canada Generic Fiber Petition Rulemaking.’’ The 

comments also may be viewed on the Commission’s 

website at: (http://www.ftc.gov/os/comments/ 

textile-mohawk/index.shtm) and (http:// 

www.ftc.gov/os/comments/textilefibernewgeneric/ 

index.shtm). 

7 In its comment, Invista stated that it is one of 

the world’s largest integrated producers of manmade fibers, and the largest producer of nylon fibers 

used in the production of both residential and 

commercial carpeting. Invista at 1. 

8 Invista also argued that Mohawk violated the 

Textile Fiber Products Identification Act and 

Textile Rules by marketing PTT carpet without 

identifying it as ‘‘polyester,’’ and that this failure to 

comply should weigh heavily against granting the 

Petition. Invista at 7. 

9 Prior to the comment period closing, the 

Commission did not receive any comments 

responding to Invista’s comment. Petitioners 

Continued 

controlled airspace designated for 

airports. However, a final rule published 

on December 5, 1995 (58 FR 51968) 

revised § 91.157. That revision removed 

paragraph (a)(2) and placed the 

information in paragraph (b)(4). As a 

result, the cross-reference in § 137.43 

became inaccurate. This final rule 

revises the cross-reference in § 137.43(c) 

so that it correctly refers to 

§ 91.157(b)(4). 

Technical Amendment 

This technical amendment merely 

revises an out-of-date cross-reference. 

There are no other changes to the 

existing regulatory text. 

Justification for Immediate Adoption 

Because this action updates an 

inaccurate cross-reference, the FAA 

finds that notice and public comment 

under 5 U.S.C. section 553(b) is 

unnecessary. For the same reason, the 

FAA finds good cause exists under 5 

U.S.C. section 553(d) for making this 

rule effective upon publication. 

List of Subjects in 14 CFR Part 137 

Agriculture, Aircraft, Aviation safety, 

Reporting and recordkeeping 

requirements. 

The Amendment 

■ In consideration of the forgoing, the 

FAA amends 14 CFR part 137 as 

follows: 

PART 137—AGRICULTURAL 

AIRCRAFT OPERATIONS 

■ 1. The authority citation for part 137 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40103, 40113, 

44701–44702. 

§ 137.43 [Amended] 

■ 2. Amend § 137.43(c) by removing the 

reference ‘‘§ 91.157(a)(2)’’ and adding in 

its place the reference ‘‘§ 91.157(b)(4)’’. 

Issued in Washington, DC on March 13, 

2009. 

Pamela Hamilton-Powell, 

Director, Office of Rulemaking. 

[FR Doc. E9–6731 Filed 3–25–09; 8:45 am] 

BILLING CODE 4910–13–P 

FEDERAL TRADE COMMISSION 

16 CFR Part 303 

Rules and Regulations Under the 

Textile Fiber Products Identification 

Act 

AGENCY: Federal Trade Commission. 

ACTION: Final rule. 

SUMMARY: The Federal Trade 

Commission (‘‘Commission’’ or ‘‘FTC’’) 

amends Rule 7(c) of the Rules and 

Regulations under the Textile Fiber 

Products Identification Act (‘‘Textile 

Rules’’) to establish a new generic fiber 

subclass name and definition within the 

existing definition of ‘‘polyester’’ for a 

subclass of fibers made from 

poly(trimethylene terephthalate) 

(‘‘PTT’’). The amendment establishes 

the subclass name ‘‘triexta.’’ 

EFFECTIVE DATE: March 26, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Janice Podoll Frankle, Attorney, 

Division of Enforcement, Bureau of 

Consumer Protection, Federal Trade 

Commission, 600 Pennsylvania Ave., 

N.W., Washington, D.C., 20580; (202) 

326-3022. 

SUPPLEMENTARY INFORMATION: Pursuant 

to a petition filed by Mohawk 

Industries, Inc. (‘‘Mohawk’’), E. I. du 

Pont de Nemours and Company 

(‘‘DuPont’’), and PTT Poly Canada 

(‘‘PTT Canada’’) (collectively 

‘‘Petitioners’’), the FTC amends Rule 

7(c) of the Textile Rules. 16 CFR 

§ 303.7(c). The amendment establishes 

the subclass name ‘‘triexta’’ as an 

alternative to the generic name 

‘‘polyester’’ for a specific subclass of 

textile fibers defined in the amendment. 

In reaching this conclusion, the 

following Federal Register document 

recounts the procedural history of this 

matter and details the record established 

by the petition and public comments. 

The document then analyzes this record 

based on the applicable Commission 

standard. 

I. Procedural History 

On February 21, 2006, Petitioners 

asked the Commission to establish a 

new generic subclass within the existing 

‘‘polyester’’ category for fibers made 

from poly(trimethylene terephthalate) 

(‘‘PTT’’).1 After initially analyzing the 

request with the assistance of a textile 

expert, tentatively and without the 

benefit of public comment, the 

Commission agreed with Petitioners that 

PTT fiber satisfied the criteria for 

establishing a new generic fiber subclass 

name and definition within Rule 7(c)’s 

definition of ‘‘polyester.’’2 Accordingly, 

on April 18, 2006, the Commission 

assigned Petitioners the designation 

‘‘PTT001’’ for temporary use in 

identifying PTT fiber pending a final 

determination on the merits of their 

Petition. 

On September 7, 2006, Petitioners 

submitted a revised petition 

(‘‘Petition’’)3 restating the original 

request and addressing minor questions 

raised by Commission staff.4

On August 24, 2007, the Commission 

solicited comment on whether to amend 

Rule 7(c) of the Textile Rules to 

establish a new generic fiber subclass 

name for PTT within the definition of 

‘‘polyester’’ for PTT (‘‘2007 Notice’’).5

At the close of the comment period, 

November 12, 2007, the Commission 

had received 49 comments.6

INVISTA S.r.l. (‘‘Invista’’)7 was the 

sole commenter to oppose the Petition. 

Its comment, however, raised serious 

concerns. Specifically, the comment 

criticized Petitioners’ testing procedures 

and provided Invista’s own test results 

that showed little difference between 

PTT and traditional ‘‘polyester’’ fibers 

(polyethylene terephthalate (‘‘PET’’)).8

Because the Commission received 

Invista’s comment only three days prior 

to the close of the 75 day comment 

period, Petitioners and other interested 

parties had limited opportunity to 

review and respond to it.9 Therefore, on 

13100 Federal Register / Vol. 74, No. 57 / Thursday, March 26, 2009 / Rules and Regulations 

submitted an additional comment in January 2008, 

which the Commission has placed on the public 

record at: (http://www.ftc.gov/os/comments/ 

textilefibernewgeneric/index.shtm) (‘‘Petitioners’ 

submission of January 2008’’). 

10 73 FR 18727 (Apr. 7, 2008) 

11 The 14 comments can be found at: (http:// 

www.ftc.gov/os/comments/textilefibernewgeneric/ 

index.shtm). On July 18, 2008, after the close of that 

comment period, the Commission received an 

additional comment from Invista, which the 

Commission has considered and placed on the 

public record along with these 14 comments. 

12 See infra Section V.A. 

13 Petition at 6. 

14 Id. at 13-19. Petitioners also submitted testing 

purporting to show that PTT is superior to PET with 

respect to carpet and apparel softness, and that PTT 

fibers in apparel recover from stretching better than 

PET fibers. Because the Commission finds that 

Petitioners satisfy the standard for creating a PTT 

subclass based on carpet durability and resilience 

alone, the agency does not address these other 

issues. 

15 This test, endorsed by the Carpet and Rug 

Institute (‘‘CRI’’), measures appearance retention by 

simulating the most aggressive parts of a walking 

action through the use of a mechanical device. The 

test assesses the appearance of samples on a scale 

from 1 to 5, where a rating of ‘‘5’’ shows no change 

and a rating of ‘‘1’’ shows severe change. In this 

test, a metal hexapod tumbler (steel cube) with six 

polyurethane studs rolls randomly over the surface 

of the carpet inside a rotating drum. The mass of 

the tumbler with six studs is 8.4 pounds, plus or 

minus 0.2 pounds. See Standard Practice for the 

Operation of the Hexapod Tumble Drum Tester, 

ASTM D-5252 - 05. 

16 See discussion of five point scale, supra note 

15. 

17 This test measures the appearance of a sample 

carpet after a certain number of human footsteps 

(‘‘cycles’’). Like the Hexapod Wear Test, the 

Performance Test relies on the visual appearance of 

the carpet sample after testing compared to the 

appearance of carpet in standardized photographs 

published by the CRI. Appearance is assessed on 

the same CRI scale, from 1 to 5. 

18 Petition at 3. 

19 Id. at 6. 

20 Id. at 7. 

21 Id. at 1. 

22 Independent Textile Testing Service, Inc. 

23 Filature Miroglio S.p.A. and Invista. 

24 Llewellyn, Kevin. 

25 Nylon fibers are stronger and better able to 

resist oil-based soiling and staining than 

‘‘polyester’’ fibers. Invista at 6. Because of these 

superior attributes nylon carpet has commanded a 

higher price than ‘‘polyester’’ carpet. Invista at 6; 

and Petition at 3. 

26 Issis & Sons, Inc. 

27 Colonial Floors, Inc. 

28 Independent is a comprehensive testing 

laboratory for carpets and textiles. Its laboratory is 

accredited under the National Voluntary Laboratory 

Accreditation Program that administers the U.S. 

Department of Commerce/National Institute of 

Standards and Technology. It conducted some of 

the tests that Petitioners rely on to support their 

Petition. 

29 Independent. 

30 Id. 

31 Invista at 3. Invista, however, acknowledged 

that PTT has the same general chemical 

composition as PET. 

April 7, 2008, the Commission reopened 

the comment period for an additional 30 

days (‘‘2008 Notice’’).10 By the close of 

the extended comment period, May 5, 

2008, the Commission had received 14 

additional comments.11

II. The Petition 

The Petition sets forth evidence and 

arguments to support each of the four 

findings the Commission must make 

before establishing a new generic 

subclass designation, specifically, that: 

(1) the fiber has the same general 

chemical composition as an established 

generic fiber category; (2) the fiber has 

distinctive properties that make it 

suitable for uses for which other fibers 

under the established generic name 

would not be suited, or would be 

significantly less well-suited; (3) these 

properties are important to the general 

public; and (4) these properties are the 

result of a new method of manufacture 

or the fiber’s substantially differentiated 

physical characteristics.12 The Petition 

also suggests three subclass names for 

PTT fiber. 

First, Petitioners provided the 

chemical composition of the PTT 

polymer to demonstrate that PTT has 

the same general chemical composition 

as PET.13

Second, Petitioners submitted tests 

indicating that PTT fibers are superior 

to PET fibers with respect to durability 

and resiliency in carpet applications.14

Specifically, Petitioners submitted the 

results of Hexapod Wear Tests 

conducted by Mohawk in its industry 

certified lab.15 According to Petitioners, 

at each of 12, 24, and 36 thousand wear 

cycles, PTT significantly outperformed 

PET. For example, PTT outperformed 

PET by more than one interval in the 36 

thousand wear cycle test, receiving a 

rating of over 3 out of 5.16 Petitioners 

also submitted data from Performance 

Appearance Rating tests (‘‘Performance 

Test’’) conducted by the same lab.17

According to Petitioners, PTT again 

significantly outperformed PET at 20, 40 

and 60 thousand wear cycles. 

Third, Petitioners submitted evidence 

that consumers consider durability and 

resiliency to be important attributes of 

carpet fiber. Specifically, Petitioners 

relied on a 2004 study commissioned by 

Mohawk in which 67% of respondents 

rated the phrase ‘‘the carpet will stand 

up to years of foot traffic without 

matting’’ as very important.18

Fourth, Petitioners contended that 

this improved durability and resiliency 

is the result of PTT’s unique chemistry 

and molecular design.19 Specifically, 

Petitioners explained that the glycol 

portion of PTT’s chemical chain 

crystalizes into a coil-like structure 

while the same portion of PET forms a 

wire-like structure. Petitioners 

contended that, as a result of this 

structural difference, ‘‘PTT fiber can 

take an additional level of applied strain 

[over PET] and recover completely.’’20

Finally, the Petition suggested three 

new subclass names for PTT fibers: 1) 

‘‘triexta’’; 2) ‘‘resisoft’’; and 3) 

‘‘durares.’’21

III. Comments in Response to the 2007 

Notice 

Of the 49 comments received in 

response to the 2007 Notice, 46 came 

from carpet retailers or dealers, one 

came from a textile testing service,22

and two came from textile 

manufacturers.23 As noted above, 

Invista submitted the only comment 

opposing a new- subclass designation 

for PTT. 

A. Comments Supporting Subclass 

Designation 

Comments supporting the PTT 

subclass designation focused on PTT’s 

superior qualities. For example, one 

retailer stated that ‘‘carpet made from 

PTT definitely is more durable, more 

stain resistant [and] softer than any 

‘polyester’ fiber I have ever seen.’’24

Another seller commented that PTT 

‘‘stands up to wear as well as nylon’’25

and has ‘‘[e]xceptional, long-lasting 

durability.’’26 Yet another stated that 

compared to ‘‘polyester,’’ the 

Smartstrand [PTT] fiber ‘‘is substantially 

more durable . . . , [and] is a gigantic leap 

forward in technology.’’27

In addition to the retailer comments, 

Independent Textile Testing Service, 

Inc. (‘‘Independent’’) explained that for 

the last 10 years it has conducted 

extensive testing of PTT carpet fiber 

including pedestrian traffic, soiling, and 

staining testing.28 Based on these tests, 

Independent asserted: ‘‘[I]t would seem 

that the test results consistently show a 

marked difference when compared to 

PET in regards to performance . . . [and] 

the significant overall performance of 

the [PTT] fiber to foot traffic and in use 

areas is remarkably better.’’29

Independent concluded that, due to 

performance differences between PET 

and PTT, a PTT subclass designation is 

appropriate.30

B. Invista’s Comment Opposing 

Subclass Designation 

Invista asserted that the Commission 

should deny the Petition because PTT 

does not have distinctive properties that 

are important to the general public.31

Invista made several arguments in 

support of this position, and also 

objected to two of the proposed generic 

subclass names. 

Federal Register / Vol. 74, No. 57 / Thursday, March 26, 2009 / Rules and Regulations 13101 

32 Id. at 9-10. 33 Id. at 10. 

34 Id. 

35 In this test, a steel ball with 14 rubber studs 

rolls randomly over the surface of the carpet inside 

a rotating drum. The mass of the ball with the studs 

is 16.8 pounds, plus or minus 0.2 pounds. See 

Standard Practice for the Operation of the 

Vettermann Drum Tester, ASTM D-5417 - 05. 

36 Id. at 12-13. 

37 Invista submitted several other tests purporting 

to show that PTT failed to perform significantly 

better than PET regarding carpet durability and 

resilience: a test described as a real-world traffic 

test involving carpet used in a commercial space; 

a 5,000 cycle caster chair (60 kg) test; a proprietary 

test measuring wear on residential stairs; and a test 

of carpet pile height loss and recovery. Invista did 

not assert that any of these tests qualify as industry 

standard tests, either now or in the past. Nor did 

Invista assert that these tests involved carpet 

representative of what consumers purchase. 

38 Id. at 10-11. 

39 Id. 

40 Id. 

41 Id. at 12. 

42 Id. at 8. 

43 Id. at 25-26. 

44 Id. 

45 DuPont, #535294-00017 and 00018. 

46 Guo, Chen; Gu, Pony; Lee, Xuemei; Shi, Rita; 

and Tian Lin, Chen. 

47 Lee, Xuemei. 

48 Frankenberg, Paul; Gu, Pony; Lee, Xuemei; and 

Shi, Rita. 

49 Shaw Industries Group at 2-3. 

50 Petitioners’ submission of January 2008, at 11. 

51 Dupont #535294-00017, at 13. Petitioners 

criticized Invista’s other tests results because they 

were not performed using industry standard testing 

methods and were performed using carpet weights 

that consumers rarely purchase. Petitioners’ 

submission of January 2008, at 12. 

52 Dupont #535294-00017, at 13; see also Petition 

at Appendix A. Petitioners tested carpet averaging 

43 ounces per square yard. Id. 

53 DuPont #535294-00017, at 13 Note 1. 

54 Id. at 13. 

55 Id. at 13. 

56 Id. 

First, Invista made three arguments to 

support its contention that Petitioners’ 

testing was inadequate to demonstrate a 

significant difference between PTT and 

PET: (1) Petitioners compared the wrong 

weight filaments; (2) Petitioners used 

the wrong test; and (3) the test results 

were so insignificant that they would 

not be meaningful to consumers. Invista 

began by stating that Petitioners unfairly 

compared heavier PTT filaments (18 

dpf) to lighter PET (15 dpf) and nylon 

(12 dpf) samples.32 Specifically, Invista 

explained that although total fiber 

weight may be equal, the weight and 

construction of individual filaments 

determines how carpet fibers perform 

on tests based on visual appearance.33

Because both of Petitioners’ tests draw 

conclusions based on visual appearance, 

Invista concluded that PET’s superior 

performance on these tests did not 

demonstrate greater durability or 

resiliency.34

Invista next criticized Petitioners’ use 

of the Hexapod Wear Test. Specifically, 

Invista asserted that this test uses a 

lighter impact ball than the Vettermann 

Drum Test,35 which Invista contended 

had been the industry standard for more 

than twenty years and produces more 

reliable results.36 Moreover, Invista 

explained that its own Vettermann 

Drum Test results showed little 

difference in the durability of PET and 

PTT fibers.37

Invista’s final argument regarding the 

adequacy of Petitioners’ testing was that 

it yielded differences that are too small 

to be meaningful to consumers.38

Specifically, Invista explained that the 

CRI appearance rating scale (from 1 to 

5) used by Petitioners is nonlinear, so 

that a divergence between 4 and 5 

represents a smaller actual difference in 

appearance than the divergence between 

2 and 3.39 Therefore, Invista explained, 

differences at the top of the scale have 

to be large to be meaningful for 

consumers, and any rating of 3 or above 

is considered an acceptable 

appearance.40 Given this explanation, 

Invista argued that Petitioners have not 

met their burden because most of 

Petitioners’ testing shows a difference of 

less than one full interval at levels over 

a rating of 3.41

Second, Invista asserted that even if 

Petitioner’s testing were adequate, PTT 

outperformed PET on too small a 

percentage of carpet performance 

characteristics to demonstrate the 

distinctiveness necessary to warrant a 

new generic fiber subclass.42

Specifically, Invista explained that PTT 

fibers performed better on only three of 

the 14 categories that Petitioners assert 

are important to consumers, and only 

two of the top ten. 

Finally, Invista stated that two of 

Petitioners’ three suggested generic 

subclass names for PTT ‘‘appear to be 

intentionally designed to create 

confusion with existing INVISTA 

trademarks.’’43 Specifically, Invista 

asserted that Petitioners’ proposed 

names ‘‘resisoft’’ and ‘‘durares’’ are 

‘‘alarmingly similar’’ to Invista’s 

ResisTech® and DuraTech® brand 

names.44

IV. Comments in Response to the 2008 

Notice 

In response to Invista’s comment, the 

Commission reopened the record and 

received 14 additional comments: two 

from Petitioners45 and 12 from various 

manufacturers or sellers of fibers. 

Eleven of the comments from 

manufacturers and sellers of fibers 

favored providing a subclass for PTT. 

These commenters stated that PTT was 

softer,46 had more resilience,47 and/or 

had better ability to stretch with 

recovery than PET.48 Shaw Industries 

Group, Inc. (‘‘Shaw’’), a carpet 

manufacturer, opposed the Petition, 

stating that ‘‘there are no distinctive 

properties that make PTT suitable for 

uses which other ‘‘polyester’’ fiber 

products either cannot be used or would 

be significantly less well suited.’’49

A. Petitioners’ Response to Invista’s 

Comment 

Petitioners responded to Invista’s 

comment by arguing that: (1) its testing 

methodology is sound; (2) its survey 

demonstrates that PTT’s distinctive 

properties are important to consumers; 

and (3) ‘‘triexta’’ is an acceptable 

subclass designation. 

1. Petitioners’ Testing Methodology Is 

Sound. 

Petitioners responded to Invista’s 

assertion that its testing was flawed 

with four explanations. First, Petitioners 

asserted that, contrary to Invista’s 

contention, consumers would notice a 

difference of one full interval on the 

Hexapod Wear Test and the 

Performance Test. They contended that 

carpet photographs on the CRI website 

showing varying degrees of wear 

performance demonstrate this fact.50

Second, Petitioners explained that 

Invista’s Vettermann Drum Test used 

carpet with face weights far heavier than 

that typically purchased by residential 

consumers.51 Specifically, Petitioners 

noted that Invista tested carpet weighing 

60 ounces per square yard, while most 

consumers purchase residential 

carpeting in the 35-45 ounces per square 

yard weight range.52 Petitioners 

explained that only a small percentage 

(about 10 percent) purchase carpet 

weighing 60 ounces and above.53 Thus, 

Petitioners asserted that their test results 

are ‘‘far more relevant to what 

consumers will experience.’’54

Moreover, Petitioners argued that 

Invista’s results conflict not only with 

Petitioners’, but also with those of 

Independent and with ‘‘the very 

favorable real world durability reports 

submitted by carpet retailers.’’55

Third, Petitioners noted that the 2007 

Petition correctly reported that the 

tested PET and PTT carpets were of 

identical fiber weight, but Mohawk 

incorrectly transcribed the dpf numbers 

in Appendix A to the Petition. 

Petitioners explained that the PET and 

PTT fibers that Mohawk tested both had 

dpf’s of 18, allowing for a meaningful 

comparison.56

13102 Federal Register / Vol. 74, No. 57 / Thursday, March 26, 2009 / Rules and Regulations 

57 The carpet fibers were: Stainmaster Nylon (sold 

by Invista), Nylon, PET, PTT, and Olefin 

Polypropylene. Id. at 10-11. 

58 The parameters were: assortment of colors and 

styles; appearance retention; resistance to foot 

traffic and furniture weight; soil resistance; 

resistance to melting; durability of stain resistance; 

resistance to fading; resistance to damage from chair 

casters; and built-in permanent static control. Id. at 

10. 

59 Id. at 10-11. 

60 DuPont #535294-00017 at 11-12. 

61 Id. 

62 Id. at 16. 

63 DuPont #535294-00018, at 2. 

64 Id. 

65 Id. 

66 Id. 

67 61 FR 16385, 16386 (Apr. 15, 1996). 

68 The Commission’s textile expert was Martin 

Bide, Ph.D., Department of Textiles, University of 

Rhode Island, Kingston, RI 02881. The Commission 

has placed Dr. Bide’s Report Concerning Petition to 

Establish a New Generic Subclass of ‘‘polyester’’ for 

PTT (July 5, 2006), on the public record at: (http:// 

www.ftc.gov/os/comments/textilefibernewgeneric/ 

index.shtm) (‘‘Expert Report’’). 

69 Invista at 7. 

70 Petitioners’ Performance Tests were consistent 

with the results from their Hexapod Tests and 

indicated that PTT carpet performed better than 

PET and comparable to nylon carpet. Petition at 15- 

17. The Petition also included the results of 

additional Hexapod Tests conducted by 

Independent. The results of these tests were 

consistent with the results of Petitioners’ Hexapod 

Tests. Petition at 17-19. 

71 Invista at 12-13. See also, Expert Report. 

72 Expert Report. 

Finally, Petitioners asserted that 

Invista’s own website had promoted the 

superiority of PTT over PET. 

Specifically, Petitioners referenced a 

chart on Invista’s website that rated the 

performance of five carpet fibers, 

including PTT and PET,57 with respect 

to nine different carpet performance 

parameters.58 Petitioners noted that 

Invista’s chart rated PTT’s performance 

as ‘‘excellent to good’’ and PET’s 

performance as ‘‘poor’’ with respect to: 

(1) appearance retention and (2) 

resistance to foot traffic and furniture 

weight.59

2. Petitioner’s Survey Demonstrates that 

Durability Is Important to Consumers. 

Petitioners responded to Invista’s 

assertion that PTT is not sufficiently 

distinctive in carpet performance 

characteristics important to consumers 

by explaining that, in their consumer 

survey, the top eight-ranked carpet 

performance characteristics of 

importance to consumers fell into two 

subject categories: carpet durability/ 

resiliency, and resistance to staining 

and soiling.60 Petitioners asserted that 

PTT fibers have significant advantages 

with respect to one of the two most 

important carpet characteristics— 

durability/resiliency.61

3. ‘‘Triexta’’ Is an Acceptable Subclass 

Designation. 

Lastly, Petitioners responded to 

Invista’s objections regarding 

Petitioners’ choice of subclass names by 

noting that neither Invista, nor any other 

commenter, challenged the name 

‘‘triexta.’’62

B. Petitioners’ Response to the Shaw 

Comment 

Petitioners responded to Shaw’s 

comments by noting that they ‘‘were 

submitted without factual support.’’63

Moreover, Petitioners commented that, 

prior to Shaw’s business acquisition of 

Honeywell International Inc.’s nylon 

fiber business, Shaw had launched a 

line of carpets made from PTT fibers 

and promoted them as ‘‘equal [to] nylon 

in independent walk-test 

evaluations.’’64 Petitioners also stated 

that, in a marketing brochure, Shaw 

published the results of a ‘‘foot step’’ 

study comparing walk performance of 

PTT and nylon carpets, which 

concluded that PTT outperformed 

nylon.65 Finally, Petitioners provided 

the following quote from Shaw’s 

brochure: ‘‘[m]ake no mistake, . . . (PTT) 

produces a totally new fiber, not a 

variation or enhancement.’’66

V. Analysis and Conclusion 

A. The Commission’s Standard for 

Granting a New Generic Fiber Subclass 

On April 15, 1996, in response to 

Courtaulds Fibers, Inc.’s petition to 

create a new generic subclass for a rayon 

fiber, the Commission set forth the 

standard for creating a new generic 

subclass fiber name. Specifically, the 

Commission stated: 

[W]here appropriate, in considering 

[an] application for new generic 

names for fibers that are of the same 

general chemical composition as 

those for which a generic name 

already has been established, rather 

than of a chemical composition that is 

radically different, but that have 

distinctive properties of importance to 

the general public as a result of a new 

method of manufacture or their 

substantially differentiated physical 

characteristics, such as their fiber 

structure, it may allow such fiber to 

be designated in required information 

disclosures by either its generic name, 

or alternatively, by its ‘‘subclass’’ 

name. The Commission will consider 

this disposition when the distinctive 

feature or features of the subclass fiber 

make it suitable for uses for which 

other fibers under the established 

generic name would not be suited or 

would be significantly less well 

suited.67

Therefore, a new generic fiber 

subclass for PTT is appropriate if: (1) 

PTT has the same general chemical 

composition as an established generic 

fiber category; (2) PTT has distinctive 

properties that make it suitable for uses 

for which other fibers under the 

established generic name would not be 

suited, or would be significantly less 

well suited; (3) these properties are 

important to the general public; and (4) 

these properties are the result of a new 

method of manufacture or PTT’s 

substantially differentiated physical 

characteristics. 

B. Analysis of the Petition 

The Commission now has a factual 

record sufficient to render a decision. 

Based on that record, the Commission 

concludes that Petitioners have met 

each of the criteria for creating a new 

generic fiber subclass. 

First, the record demonstrates that 

PTT has the same general chemical 

composition as the Commission’s 

established ‘‘polyester’’ generic fiber 

category and thus falls within Rule 

7(c)’s definition of ‘‘polyester.’’ 16 CFR 

303.7(c). Using the chemical 

composition of the PTT polymer 

provided by Petitioners, a textile expert 

hired by the FTC confirmed this fact.68

Moreover, Invista agreed.69

Accordingly, the Petition satisfies the 

first criterion for granting a new generic 

fiber subclass name. 

Second, PTT has distinctive 

properties that make it suitable for uses 

for which other fibers under the 

established generic name would be 

significantly less well suited. 

Specifically, Petitioners submitted 

testing demonstrating that PTT is more 

durable and resilient than ordinary 

‘‘polyester’’ (PET) in some carpet 

applications. Petitioners compared PTT 

and PET carpet using the Hexapod Wear 

Test, a standard industry appearance 

retention test that simulates walking 

action on carpet.70 Invista agreed that 

this is a standard industry test for 

durability, and the Commission’s textile 

expert confirmed that it is a well 

established protocol.71 Having reviewed 

the test results, the Commission’s expert 

confirmed that they demonstrate that 

carpets made from PTT fibers 

significantly outperform carpets made 

from PET.72

We reject Invista’s argument that the 

Hexapod Test failed to show that PTT 

is significantly more durable or 

resilient. First, even assuming, 

arguendo, Invista’s contention that 

consumers would not notice a 

difference of only one interval at higher 

Federal Register / Vol. 74, No. 57 / Thursday, March 26, 2009 / Rules and Regulations 13103 

73 Petition at 14-15. 

74 Invista also submitted the results of several 

other tests purporting to show that PTT does not 

perform significantly better than PET. See supra 

note 37. The record does not indicate that any of 

these tests are current or former industry standard 

tests. In addition, some of them involved heavier 

weight PET and PTT carpet than the weight of 

carpet consumers typically purchase and, for 

others, the record does not indicate the weight of 

the carpets tested. Therefore, we accord these test 

results less weight. 

75 DuPont #535294-00017 at 13. 

76 Petition at 7-8. 

77 Expert Report. 

78 The Commission has selected the name 

‘‘triexta’’ because it was the one subclass name 

proposed by Petitioners to which no commenter 

objected. 

79 72 FR 48600 (Aug. 24, 2007). 

CRI ratings, PTT significantly 

outperformed PET on the heaviest of the 

three wear cycles. Specifically, in the 

vast majority of trials, PET performed 

below an acceptable rating (i.e., 3) while 

PTT performed at or above a 3 rating in 

all trials.73 Moreover, the central 

tendency of each data set shows a 

difference of over one full interval. 

Second, Petitioners tested carpet 

weights that consumers typically 

purchase, whereas Invista’s Vettermann 

Drum testing utilized heavier carpet that 

only a small percentage of consumers 

actually buy.74 Finally, Invista’s 

assertion that Petitioners tested PET and 

PTT of different fiber weights (dpf) is 

not at issue because Petitioners did, in 

fact, test the same weight PET and PTT 

carpet fibers.75 Accordingly, the Petition 

satisfies the second criterion for 

granting a new generic fiber subclass 

name. 

Third, Petitioners have demonstrated 

that PTT’s distinctive properties are of 

importance to the general public. As 

discussed earlier, Mohawk’s consumer 

survey shows that consumers shopping 

for carpet consider durability/resiliency 

to be very important attributes. 

Specifically, a 2004 study that Mohawk 

commissioned found that 67% of 

respondents rated carpet durability/ 

resiliency as a very important trait. 

Thus, the Petition satisfies the third 

criterion for granting a new generic fiber 

subclass name. 

Finally, PTT’s enhanced durability is 

the result of substantially differentiated 

physical characteristics. Specifically, 

Petitioners explained that the molecular 

structure of PTT is more coil-like than 

PET’s straight-wire structure. Thus, PTT 

fibers are better able to recover without 

permanently deforming and developing 

a crushed appearance.76 The 

Commission’s textile expert reviewed 

the material that Petitioners submitted 

and confirmed this fact.77 Accordingly, 

the Petition satisfies the final criterion 

for granting a new generic fiber subclass 

name. 

Because the Petition meets all the 

criteria for establishing a new generic 

subclass fiber name, the Commission 

amends Rule 7(c) to define the generic 

subclass ‘‘triexta’’ and to allow use of 

the name ‘‘triexta’’ as an alternative to 

the generic name ‘‘polyester’’ for PTT 

fiber.78 Because ‘‘triexta’’ is the second 

subclass generic designation for 

‘‘polyester,’’ we have moved the first 

subclass designation to its own 

subsection, (c)(1), for clarity. Finally, 

based on this decision, the temporary 

designation ‘‘PTT001’’ is revoked as of 

the effective date of this amendment. 

VI. Effective Date 

The Commission is making the 

amendment effective today, March 26, 

2009, as permitted by 5 U.S.C. 553(d), 

because the amendment does not create 

new obligations under the Textile Rules; 

rather, it merely creates a fiber name 

and definition that covered companies 

may use to comply with the Textile 

Rules. 

VII. Regulatory Flexibility Act 

In the Request for Public Comment,79

the Commission tentatively concluded 

that the provisions of the Regulatory 

Flexibility Act relating to an initial 

regulatory analysis, 5 U.S.C. 603-604, 

did not apply to the Petition’s proposal 

because the amendment, if promulgated, 

would not have a significant economic 

impact on a substantial number of small 

entities. The Commission believed that 

the proposed amendment would impose 

no additional obligations, penalties, or 

costs. The amendment simply would 

allow covered companies to use a new 

generic name as an alternative to an 

existing generic name for that defined 

subclass of fiber, and would impose no 

additional labeling requirements. To 

ensure, however, that the Commission 

did not overlook any substantial 

economic impact, the Commission 

solicited public comment in the Request 

for Public Comment on the effects of the 

proposed amendment on costs, profits, 

competitiveness of, and employment in 

small entities. 

The Commission did not receive any 

comment in response. Accordingly, the 

Commission hereby certifies, pursuant 

to the Regulatory Flexibility Act, 5 

U.S.C. 605(b), that the amendment 

promulgated today will not have a 

significant economic impact on a 

substantial number of small entities. 

VIII. Paperwork Reduction Act 

This amendment does not constitute a 

‘‘collection of information’’ under the 

Paperwork Reduction Act of 1995, Pub. 

L. 104-13, 109 Stat. 163, 44 U.S.C. 

chapter 35 (as amended), and its 

implementing regulations, 5 CFR 1320 

et seq. Those procedures for establishing 

generic names that do constitute 

collections of information, 16 CFR 

303.8, have been submitted to OMB, 

which has approved them and assigned 

them control number 3084-0101. 

List of Subjects in 16 CFR Part 303 

Labeling, Textile, Trade practices. 

IX. PART 303—RULES AND 

REGULATIONS UNDER THE TEXTILE 

FIBER PRODUCTS IDENTIFICATION 

ACT 

■ 1. The authority citation for part 303 

continues to read as follows: 

Authority: Sec. 7(c) of the Textile Fiber 

Products Identification Act (15 U.S.C. 70e(c)). 

■ 2. In § 303.7, in paragraph (c), 

designate the second sentence, which 

follows the second chemical 

description, as paragraph (c)(1) and add 

new paragraph (c)(2) to read as follows: 

§ 303.7 Generic names and definitions for 

manufactured fibers. 

* * * * * 

(c) * * * 

(2) Where the glycol used to form the 

ester consists of at least ninety mole 

percent 1,3-propanediol, the term 

‘‘triexta’’ may be used as a generic 

description of the fiber. 

* * * * * 

By direction of the Commission. 

Donald S. Clark, 

Secretary. 

[FR Doc. E9–6633 Filed 3–25–09: 8:45 am] 

BILLING CODE 6750–01–S 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

18 CFR Part 42 

[Docket No. RM06–8–002; Order No. 681– 

B] 

Long-Term Firm Transmission Rights 

in Organized Electricity Markets 

Issued March 20, 2009. 

AGENCY: Federal Energy Regulatory 

Commission, DOE. 

ACTION: Final rule; order on rehearing 

and clarification. 

SUMMARY: The Federal Energy 

Regulatory Commission is issuing an 

order on rehearing and clarification of 

Long-Term Firm Transmission Rights in 

Organized Electricity Markets, Order 

No. 681–A, 71 FR 68,440 (November 16,