[Federal Register Volume 74, Number 57 (Thursday, March 26, 2009)]
[Rules and Regulations]
[Pages 13099-13103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6633]


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FEDERAL TRADE COMMISSION

16 CFR Part 303


Rules and Regulations Under the Textile Fiber Products 
Identification Act

AGENCY: Federal Trade Commission.

ACTION: Final rule.

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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 
Sec.  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.
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    \1\ Mohawk sells a line of carpets manufactured from PTT under 
the trademark SmartStrand[reg]. DuPont markets PTT under the 
trademark Sorona[reg]. PTT Canada markets PTT under the trademark 
Corterra[reg] 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.''
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    On September 7, 2006, Petitioners submitted a revised petition 
(``Petition'')\3\ restating the original request and addressing minor 
questions raised by Commission staff.\4\
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    \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 Kruskal-Wallis test as a statistical 
analysis rather than a carpet human traffic test.
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    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\
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    \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).
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    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

[[Page 13100]]

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\
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    \7\ In its comment, Invista stated that it is one of the world's 
largest integrated producers of man-made 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 
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.
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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.
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    \12\ See infra Section V.A.
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    First, Petitioners provided the chemical composition of the PTT 
polymer to demonstrate that PTT has the same general chemical 
composition as PET.\13\
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    \13\ Petition at 6.
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    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.
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    \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.
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    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\
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    \18\ Petition at 3.
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    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\
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    \19\ Id. at 6.
    \20\ Id. at 7.
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    Finally, the Petition suggested three new subclass names for PTT 
fibers: 1) ``triexta''; 2) ``resisoft''; and 3) ``durares.''\21\
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    \21\ Id. at 1.
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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.
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    \22\ Independent Textile Testing Service, Inc.
    \23\ Filature Miroglio S.p.A. and Invista.
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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\
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    \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.
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    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\
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    \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.
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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.
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    \31\ Invista at 3. Invista, however, acknowledged that PTT has 
the same general chemical composition as PET.

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[[Page 13101]]

    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\
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    \32\ Id. at 9-10.
    \33\ Id. at 10.
    \34\ Id.
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    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\
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    \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.
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    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\
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    \38\ Id. at 10-11.
    \39\ Id.
    \40\ Id.
    \41\ Id. at 12.
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    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.
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    \42\ Id. at 8.
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    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[reg] and 
DuraTech[reg] brand names.\44\
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    \43\ Id. at 25-26.
    \44\ Id.
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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 Petitioners\45\ 
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\
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    \45\ DuPont, <greek-i>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.
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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\
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    \50\ Petitioners' submission of January 2008, at 11.
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    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\
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    \51\ Dupont <greek-i>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 <greek-i>535294-00017, at 13; see also Petition at 
Appendix A. Petitioners tested carpet averaging 43 ounces per square 
yard. Id.
    \53\ DuPont <greek-i>535294-00017, at 13 Note 1.
    \54\ Id. at 13.
    \55\ Id. at 13.
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    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\
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    \56\ Id.

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[[Page 13102]]

    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\
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    \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.
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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\
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    \60\ DuPont <greek-i>535294-00017 at 11-12.
    \61\ Id.
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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\
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    \62\ Id. at 16.
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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\
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    \63\ DuPont <greek-i>535294-00018, at 2.
    \64\ Id.
    \65\ Id.
    \66\ Id.
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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\
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    \67\ 61 FR 16385, 16386 (Apr. 15, 1996).

    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.
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    \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.
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    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\
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    \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.
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    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

[[Page 13103]]

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.
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    \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 <greek-i>535294-00017 at 13.
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    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.
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    \76\ Petition at 7-8.
    \77\ Expert Report.
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    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.
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    \78\ The Commission has selected the name ``triexta'' because it 
was the one subclass name proposed by Petitioners to which no 
commenter objected.
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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.
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    \79\ 72 FR 48600 (Aug. 24, 2007).
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    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

0
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)).

0
2. In Sec.  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:


Sec.  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