Federal Register / Vol. 64, No. 123 / Monday, June 28, 1999 / Proposed Rules 34597

CONSUMER PRODUCT SAFETY notice published elsewhere in the younger against unreasonable risk of COMMISSION Federal Register, the Commission is death or injury suffered as a result of issuing a rule modifying the 1996 ignition and continued burning of 16 CFR Parts 1615 and 1616 amendments to require labeling and sleepwear garments.’’ 36 FR 14063 (July hangtags on tight-fitting sleepwear.2 The 29, 1971). Standard for the Flammability of labels and hangtags will inform Once the Commission was established Children's Sleepwear: Sizes 0 through consumers that these garments are it took over administration of the FFA 6X; Standard for the Flammability of intended to be worn with a snug fit for and standards set under it. 15 U.S.C. Children's Sleepwear: Sizes 7 through safety. Also in this issue of the Federal 2079(b). In 1974, the Commission issued 14; Withdrawal of Proposed Register the Commission corrects some a flammability standard for children’s Revocation of Amendments misidentified references in the sleepwear in sizes 7–14. 39 FR 15210. 3 AGENCY: Consumer Product Safety amendments. This standard was nearly identical to Commission. B. Background the standard for smaller sized sleepwear. ACTION: Withdrawal of proposed rule. 1. The Original Standards Under both standards a specimen is SUMMARY: The Commission withdraws Since the 1970’s there have been exposed for 3 seconds to a small open its proposed revocation of certain federal flammability standards to flame ignition source that resembles the amendments to the standards for the protect children whose sleepwear type of flame that would result from a flammability of children’s sleepwear, becomes ignited by a small open flame. child playing with matches or a lighter. sizes 0 through 6X and sizes 7 through The Department of Commerce (‘‘DOC’’) The specimens must self-extinguish, 14. As directed by the fiscal year 1999 issued the flammability standard for that is, they must stop burning when the appropriations legislation for the children’s sleepwear in sizes 0 through ignition source is removed. 16 CFR Departments of Veterans Affairs and 6X (16 CFR Part 1615) in 1971. The 1615.3 and 1616.3. Seams and trim of Housing and Urban Development, and Consumer Product Safety Commission sleepwear garments must also pass this several independent agencies, including issued the flammability standard for test. the Consumer Product Safety children’s sleepwear in sizes 7 through This is a performance test and does Commission, the Commission 14 (16 CFR Part 1616) in 1974. not require or prohibit any type of fabric previously proposed to revoke the Both of these standards were issued or mandate any flame-retardant sleepwear amendments. In accordance under section 4 of the Flammable treatment. Due to the characteristics of with the appropriations legislation, the Fabrics Act (‘‘FFA’’), which authorizes certain fabrics, however, untreated Commission has considered all relevant flammability standards for a fabric, cotton fabrics generally will not pass the comments and information and has related material or product when flammability test while some synthetic determined not to revoke the necessary to ‘‘protect the public against ones do. amendments. Elsewhere in this issue of unreasonable risk of the occurrence of The standards apply to ‘‘children’s the Federal Register the Commission is fire leading to death or personal injury, sleepwear,’’ which before the modifying the amendments to require or significant property damage.’’ 15 exemptions was defined as ‘‘any that tight-fitting sleepwear bear a label U.S.C. 1193(a). product of wearing apparel’’ in the sizes and hangtag informing consumers that When the DOC issued the original covered by the standard ‘‘such as the garments should fit snugly. Also in standard in 1971, it relied upon reports nightgowns, pajamas, or similar or this issue of the Federal Register the of cases in which people suffered burns related items, such as robes, intended to Commission corrects some from such activities as cooking, be worn primarily for sleeping or misidentified references in the smoking, burning trash, lighting activities related to sleeping.’’ The amendments. In that notice the furnaces, and while children were standards exclude diapers and Commission is also clarifying the playing with matches and lighters or underwear. 16 CFR 1615.1(a) and 1616.2 definition of infant garments. contacting stove burners. (DOC Analysis (a). The definition has long engendered of Data from Apparel Burn Cases for questions of what garments are intended DATES: The proposed rule is withdrawn Children’s Sleepwear Standard DOC for sleeping or related activities.(59) 4 on June 28, 1999. PFC 3–70.) The flammability test that FOR FURTHER INFORMATION CONTACT: DOC issued focused on burns resulting 2. The Exemptions Marilyn Borsari, Office of Compliance, from these kinds of ignitions. It was not In the 1990’s the Commission began Consumer Product Safety Commission, intended to address all fires in which considering whether the standards Washington, D.C. 20207; telephone sleepwear happened to burn. For could be amended so that close-fitting (301) 504–0400, extension 1370. example, the DOC excluded incidents sleepwear could be made out of cotton SUPPLEMENTARY INFORMATION: involved wearing apparel contaminated without increasing the risk of fire with by flammable liquids when developing such garments. The Commission started A. The Decision the standard because of the variability this inquiry for several reasons. The After considering reports issued by and complexities involved. Rather, the staff noticed increased marketing of the General Accounting Office and purpose was to ‘‘provide a high and non-sleepwear to be used for sleeping, available information and comments, effective level of protection to children particularly cotton long underwear-syle the Commission has decided to approximately 5 years of age and garments. This marketing was confusing withdraw the January 19, 1999 proposed for consumers and Commission staff as revocation of exemptions from the Mary Gall and Thomas Moore voted in favor of the line between sleepwear and Commission’s sleepwear standards. As withdrawal while Chairman Ann Brown voted underwear (daywear) became explained in detail below, the against it. increasingly blurred.(6) The 2 Commissioners Mary Gall and Thomas Moore Commission believes the reasons for the voted to require labeling. Chairman Ann Brown Commission staff developed 1 exemptions remain sound. In a separate abstained. 3 Commissioners Mary Gall and Thomas Moore 4 Numbers in parentheses refer to documents in 1 The Commission voted to withdraw the voted to issue the corrections. Chairman Ann the List of Relevant Documents at the end of this proposed revocation by two to one. Commissioners Brown abstained. notice.

VerDate 18-JUN-99 11:04 Jun 25, 1999 Jkt 183247 PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 E:\FR\FM\A28JN2.017 pfrm01 PsN: 28JNP1 34598 Federal Register / Vol. 64, No. 123 / Monday, June 28, 1999 / Proposed Rules enforcement guidelines to try to with no pieces longer than 141⁄2 inches General Accounting Office (‘‘GAO’’) to distinguish between sleepwear and non- (for a two piece garment); and less than review burn incident data from the sleepwear garments. However, frequent 19 inches at the chest. ‘‘Tight-fitting ignition of children’s sleepwear from fashion changes required numerous garments’’ were defined by specifying small open-flame sources for the period revisions of these guidelines. The maximum dimensions for the chest, July 1, 1997 through January 1, 1999. As Commission staff believed that this waist, seat, upper arm, thigh, wrist and required by the legislation, GAO confusion was difficult both for ankle for each size. These dimensions completed this review by April 1, 1999. consumers attempting to put their were based on ASTM standards and an The Conference Report also directed children in suitable sleeping garments anthropometric study of children GAO to assess the information and and for Commission staff trying to conducted in 1977 by the University of education campaign conducted by enforce the existing standard. Michigan. 59 FR 53621. All exempt industry and the Commission (H.R. Rep. Moreover, the Commission staff was garments would still have to meet the No. 769, 105th Cong., 2d Sess. 267 concerned that to the extent consumers flammability standards for clothing (1998)). The appropriations measure were turning to long underwear-style textiles and vinyl plastic film (16 CFR requires the Commission to issue a final cotton garments to satisfy a desire for parts 1610 and 1611). The Commission rule revoking, maintaining or modifying cotton sleepwear, this could be placing considered the 39 comments it received the 1996 amendments and any later children at an increased risk of injury. in response to the NPR as well as the amendments by July 1, 1999. The The Commission staff believed that, views expressed in a public meeting Commission must consider and without reducing safety, specific held on April 25, 1995 attended by substantively address the findings of the exemptions from the standards could sleepwear manufacturers and importers, GAO and other information available to respond to marketing practices consumers and other interested persons. the Commission. Congress specified that responding to consumer demands for On September 9, 1996, the the rulemaking conducted with respect cotton, and reduce market confusion Commission issued a final rule to this matter is not subject to (1) the and compliance and enforcement amending the flammability standards Consumer Product Safety Act, 15 U.S.C. problems. for children’s sleepwear to exclude from 2051 et seq., (2) the Flammable Fabrics The Commission published an the definition of ‘‘children’s sleepwear,’’ Act, 15 U.S.C 1191 et seq., (3) the advance notice of proposed rulemaking (1) infant garments sized 9 months or Regulatory Flexibility Act, 5 U.S.C 601 (‘‘ANPR’’) on January 13, 1993 that smaller, and if a one piece garment, et seq., (4) the National Environmental began the process of amending the does not exceed 25.75 inches in length; Policy Act of 1969, 42 U.S.C. 4321 et children’s sleepwear standards. 58 FR if a two-piece garment, has no piece seq., (5) the Small Business Regulatory 4111. The ANPR discussed the exceeding 15.75 inches in length, and Enforcement Fairness Act of 1996, regulatory alternatives being considered (2) tight-fitting garments sized larger Public Law 104–121, or (6) any other and stated that the Commission could than 9 months (meeting maximum statute or Executive order. amend the standards to exempt tight- dimensions specified for each size). 61 As directed, on January 19, 1999, the fitting sleepwear and garments intended FR 47634. The Commission stated that Commission issued a notice proposing for infants. The ANPR discussed the amendments would take effect on to revoke the September 9, 1996 existing standards and requested January 1, 1997. The Commission also amendments, and subsequent comments. On the same date the continued the stay of enforcement on amendments, including the technical Commission published the ANPR it also certain underwear garments until March amendments and the amendment to the issued a stay of enforcement stating that 9, 1998 (it was subsequently extended policy statements. 64 FR 2867. The it would not enforce the sleepwear until June 9, 1998). 61 FR 47412. Commission received over 3,400 requirements against garments being Once manufacturers began to design comments responding to the proposed used as sleepwear that are labeled and sleepwear that would meet the tight- revocation. These comments and the marketed as underwear if those fitting exemption they encountered Commission’s responses to the principal garments are skin-tight or nearly skin- some design and construction problems. issues they raised are discussed in tight, relatively free of ornamentation, The staff met with industry members to section G below. Although not required and made from fabrics such as rib knit, discuss these problems. The by the appropriations measure, the interlock knit or waffle knit. 58 FR 4078. Commission proposed (63 FR 27877) Commission held a public hearing on In response to the ANPR the and then on January 19, 1999 issued in April 22, 1999, for interested persons to Commission received 2,173 comments. final (64 FR 2833), technical present their views on the proposed The comments were overwhelmingly in amendments to adjust the points of revocation orally. Twenty-one people favor of the exemption (2,121 in favor, measurement for the upper arm, seat provided testimony. 52 opposed). Many of these responses and thigh to make a more practical, The Commission has considered were form letters. Many letters came wearable garment and to clarify how the GAO’s reports, written comments from parents who wanted to have cotton sleeve must taper. The Commission also submitted in response to the proposed sleepwear for their children.(8) clarified its policy statements so that revocation, oral testimony before the The Commission continued its infant garments and tight-fitting Commission, and other available consideration, and on October 25, 1994 garments could be marketed and information and has determined to issued a notice of proposed rulemaking promoted with other sleepwear. 64 FR maintain the exemptions. The basis for (‘‘NPR’’) proposing to exempt tight- 2832. this decision is discussed below. fitting garments and infant garments from the sleepwear standards.(22) The 3. Legislation and Proposed Revocation C. The Basis for the Exemptions Still Commission proposed to do this by On October 21, 1998, Congress Stands amending the definition of ‘‘children’s enacted fiscal year 1999 appropriations The comments and testimony indicate sleepwear’’ in the standards. For for the Commission. Public Law 105– that people appear to have the false purposes of the proposed exemption, 276. Section 429 of that law required the impression that the 1996 amendments ‘‘infant garments’’ were defined as those Commission to propose to revoke the abolished all standards for sleepwear. In labeled 0–6 months; less than 21 inches 1996 amendments to the sleepwear fact, the Commission’s action was in length (for a one piece garment) or standards. The law also required the narrowly tailored. The Commission’s

VerDate 18-JUN-99 11:04 Jun 25, 1999 Jkt 183247 PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 E:\FR\FM\A28JN2.018 pfrm01 PsN: 28JNP1 Federal Register / Vol. 64, No. 123 / Monday, June 28, 1999 / Proposed Rules 34599 review of research and injury data manikin studies from the later 1970’s The Commission conducted in-depth indicates that the principal risk from found that closer-fitting cotton ski investigations of incidents reported sleepwear is posed by loose-fitting pajamas were likely to produce less from 1992–1994 involving sleepwear or garments. The sleepwear standard extensive injuries than looser fitting daywear used as sleepwear. Summaries continues to cover these types of nightgowns. A manikin study in 1986 of these investigations were included in garments. They must pass the standard’s compared five different fabrics and staff memos that were part of the flammability test, that is, they must self- found that, for each of the fabrics, briefing packages for the proposed and extinguish when exposed to a small nightgowns were more hazardous than final amendments.(12 and 25) Most of open flame. Thus, the flammability pajamas. These are just some of the the incidents involved loose-fitting standards still cover nightgowns and studies the Commission considered.(10) clothing such as nightgowns, nightshirts looser fitting pajamas and robes—the After reviewing all the available and tee shirts. Ignition sources were types of sleepwear most often involved literature on the issue of garment fit and items such as cigarette lighters, stoves, in clothing-ignited fires. safety, the staff concluded: matches, and fireplaces. Based on its Considerable confusion also exists investigations of NEISS cases, the staff concerning the purpose of the The reduced probability of ignition of tight estimated that about 200 thermal burn flammability standards and their ability fitting clothing is related to three factors: the injuries involving daywear used as to reduce injuries and deaths due to limited supply of oxygen from underneath the garment, the role the skin plays as a heat sleepwear were treated in hospital fires. The original flammability standard sink and reduced likelihood of contacting the emergency rooms during 1994.(25) was intended to address fires in which flame source. In 1993, when the Commission began clothing was ignited by a small open Garment configurations in which large air the rulemaking proceeding that resulted flame such as matches or lighters. Thus, spaces are created between the body and the in the 1996 amendments, the the original standard was not designed garment act as chimneys in which the flame Commission issued a stay of to reduce injuries sustained in whole spread accelerates as it travels an enforcement for garments that were house or bedding fires. The occurrence unrestricted path. The resultant rapid marketed and labeled as underwear and of such incidents does not undermine burning is characterized by large flames. The were skin-tight or nearly skin-tight. the exemptions because even absent the excess fabric also serves as a fuel supply that These garments are closer fitting than exemptions, the standard would not makes it difficult for the flames to be traditional pajamas but looser than extinguished. Ignition of tight fitting clothing address such incidents. or sections of tight fitting clothing is garments allowed under the 1996 The Commission has determined to characterized by both lower flame spread and exemption. The Commission is not maintain the 1996 amendments because smaller flames, allowing the wearer to take aware of any burn incidents involving the basis for them remains sound. As action sooner. Because tight fitting clothing such stay garments.(62) If tight-fitting discussed in sections E through G is less likely to support propagation, it is garments posed an increased risk of fire, below, GAO’s reports, as well as often easier to extinguish the flames. one would expect to see an increase in comments and information received clothing-related incidents after these (10) The Commission is not aware of since the amendments, present no new stay garments were allowed since they any studies conducted since the 1996 evidence that would change the are even looser than exempt garments. amendments that invalidate these rationale for the 1996 exemptions. A This has not been the case. When the findings. brief review of the basis for the 1996 Commission issued the tight-fitting amendments follows. 2. Data Support Exemptions exemption, the NEISS estimate for clothing-related incidents involving 1. Technical Research Supports Tight- Tight-fitting. When it issued the 1996 Fit children under 15 was about the same exemptions, the Commission reviewed as before the stay.(25) When the staff Before issuing the proposed and final available injury data from the period reviewed the data for the current exemptions, the Commission conducted 1980–1994. During that period, there proceeding it found no increase in an extensive review of technical were an estimated annual average 90 fatalities in the last 20 years and no research and information considering hospital emergency room-treated trends in injuries since before the the effect garment design can have on thermal burn injuries to children stay.(62) According to National clothing fires. The Commission found involving sleepwear. (The Purchase Diary data, purchases of cotton that garment design is a major factor; it corresponding average annual estimate sleepwear garments have increased from influences the probability of ignition, involving daywear was 850.) 9.7 percent in 1992 to 27.5 percent in flame spread, duration of burning, and Significantly, injuries associated with 1998. More cotton garments are on the the amount of heat transferred to the sleepwear predominantly involved market, but there has not been a body. (10) females (71 percent) while burn injuries corresponding increase in incidents.(61) The idea that tight-fitting garments from daywear usually involved males In fact, relatively close-fitting may be less hazardous than loose-fitting (69 percent). (25) This tendency for garments resembling underwear have ones did not originate with the sleepwear-related burns to involve been available long before the stay of Commission’s work in the early 1990’s. females was true even when the enforcement. In 1979, the Commission Numerous studies from the 1970’s and Department of Commerce developed the received a petition from a sleepwear 1980’s examined the issue. Several original standard (DOC Analysis of Data manufacturer who was concerned about studies in the 1970’s placed loose and for standard). Females are more likely to thermal underwear being marketed and tighter-fitting garments on manikins to have been wearing nightgowns or looser worn as sleepwear. Beginning in 1984, observe their performance when ignited. fitting garments for sleeping. Of the 20 the Commission staff developed a series For example, in a 1971 study, when nightwear-related cases involving of enforcement pamphlets to try to sleepwear garments were burned on children under 15 years reported to distinguish between these types of toddler-size manikins the researchers NEISS during the 1980–1994 period, 11 cotton underwear garments and found that a full, loose garment made of involved nightgowns, six involved sleepwear.(59) Throughout this time, a relatively flammable lightweight fabric pajamas (not tight-fitting), two involved sleepwear-related burn incidents have is more hazardous than a close-fitting nightshirts, and one involved a continued to involve primarily loose- one made of a heavier cotton. Two polyester blanket sleeper.(25) fitting garments such as nightgowns,

VerDate 18-JUN-99 17:32 Jun 25, 1999 Jkt 183247 PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 E:\FR\FM\28JNP1.XXX pfrm01 PsN: 28JNP1 34600 Federal Register / Vol. 64, No. 123 / Monday, June 28, 1999 / Proposed Rules traditional (loose) pajamas, and house fires; the other involved a home- CPSC that the standard has been a oversized tee-shirts.(25) made garment. The Commission success.(26) The rationale for provisions Complementing the research concluded that none of these cases concerning infants and closer-fitting discussed above and the data, the staff involved risks of injury which the garments was similar to CPSC’s. She also conducted a review of literature sleepwear standard was intended to stated: ‘‘Infants up to 7 kg (about 5 concerning the association of closeness address.’’ 61 FR 47637. months old) are usually under the close of fit and burn severity.(13) For The Commission previously supervision of their parents and they are example, a 1985 study reviewed the considered exempting infants from the not crawling, walking or climbing at this Canadian experience with clothing- sleepwear standard. In 1977, the age.’’ As for polo pajamas and sleepers: ignited injuries involving children Commission proposed to delete ‘‘Studies have demonstrated that under 9 years old. There were 192 cases coverage of sleepwear in sizes below garment style play [sic] a major role in reported with statistical analyses size one. 42 FR 56568. In 1978, the the flammability of sleepwear. Snug performed on 174 cases. The study Commission withdrew this proposal. 43 fitting garments with tight waists, ankles found that the two significant predictors FR 31348. In the twenty years since that and wrists as polo pajamas and sleepers, of burn severity were the style of decision, clothing-ignited fires are safer as they are less likely to come garment and the ignition situation; involving infants have remained a rare into contact with ignition sources, and burns tended to be more severe when event. burn slowly.’’ She stated that no deaths the victims wore loose-fitting clothing In its review of data for the 1996 had been reported after the 1987 and when no adult was present.(13) exemptions, the staff found only three standard. A five year study to assess the A study published in 1973 used data reported cases involving children under effectiveness of the regulations was from the Flammable Fabric Accident one year old between 1980 and 1994. initiated, but because there were so few Case and Testing System (‘‘FFACTS’’) to Only one of these involved nightwear, injuries reported, the study was determine that close-fitting garments and it was a house fire.(25 and 12) In discontinued. The Director concluded: were associated with less severe burn its review of incidents reported since ‘‘Since the Regulations, injuries due to injuries. The study concluded that 1996, the staff found two involving the ignition of children’s sleepwear are closeness of fit had a stronger influence children under one year old. Both no longer an issue in Canada.’’(26) As of than fiber content on burn severity in incidents were house fires. It was May 1999, Canada reports that it still incidents where the clothing was the difficult to determine what type of has no reported fire deaths related to first to ignite.(13) clothing the children were wearing.(62) children’s sleepwear since 1987.(68) Infants. Very few incidents involving Several other countries distinguish infants under one year have been 3. Experiences of Other Countries Support Exemptions between loose-fitting sleepwear such as reported. The original standard was nightgowns and closer-fitting sleepwear only intended to address incidents in The experiences of several other such as pajamas and make exceptions which an infant’s clothing was ignited countries, particularly Canada, bolster for infant garments.(13) Australian from a brief exposure to a small open the Commission’s conclusion that the standards have three categories: (1) Low flame. Flame-resistant fabrics burn or exemptions would not reduce the level fire hazard type fabric, (2) form fitting char until the ignition source is of protection for children. clothing designed to reduce fire hazard, removed. Flame retardant sleepwear In 1971 Canada issued flammability and (3) garments not complying with will not protect a baby whose crib regulations for children’s sleepwear that either of these categories and perceived becomes engulfed in flames. This is the established a minimal standard similar to be of greater risk. Garments must be type of scenario that most often occurs to CPSC’s general wearing apparel labeled as to their fire hazard category. when an infant suffers burn injuries.(15) standard. However, sleepwear-related The United Kingdom has sleepwear Industry representatives reported that burn injuries and deaths continued, and regulations issued in 1987 that require infant sizing is not true to age. As a studies showed that garment style was nightdresses, dressing gowns and common rule, according to the retail a major factor. Thus, in 1987, Canada similar garments commonly worn for industry, parents buy infants’ sleepwear revised its sleepwear regulations so that sleeping by children between 3 months at double the age (i.e., for 6 month old there are essentially two regulations; and 13 years to meet flammability infants, purchasing the 12 month size). one applies to sleepwear considered to performance requirements. Other The exemption applies to garments in be a high fire hazard—such as garments—such as pajamas, cotton terry sizes 9 months and smaller. As the nightgowns, nightshirts, robes and bath robes and garments for babies preamble to the final rule noted, these loose-fitting pajamas—the other to under 3 months—do not have to comply garments are frequently purchased for sleepwear posing a low fire hazard. with the flammability standard, but babies 6 months of age and younger. 61 Garments presenting a high fire hazard must have a permanent label indicating FR 47638. (See also oral testimony of must meet a flammability test similar to whether they meet the flammability Julie Goldschneider and Commissioner the U.S. sleepwear standard for non- standard.(13) Moore’s April 30, 1996 statement.) exempt garments. Sleepwear posing a New Zealand’s sleepwear standards A 1973 review of the FFACTS data low fire hazard must meet a test similar went into effect in 1980. They require base found 434 incidents up to that date to the Commission’s general wearing that sleepwear for children from 1 to 14 involving persons of any age clothed in apparel flammability test. Canada years old be made from fabrics defined sleepwear. Of these, only three involved considers sleepwear of the following as ‘‘low fire risk’’ or be made of a closer- children under one year of age. Two of types to present a low fire hazard: polo fitting pajama style.(13) these involved house or trailer fires and pajamas and sleepers in sizes 0–14x, These other countries do not have the the third was a bedding fire.(13) A 1978 sleepwear designed for infants up to 7 extensive death and injury databases study of 66 burn injuries to children kg (15.4 lbs.), and sleepwear designed that the U.S. does. Therefore, it is under one year old associated with for hospital use in sizes 0–14. Polo difficult to make statistical comparisons clothing found similar results. ‘‘In ten pajamas and sleepers have tight waists, between burn deaths and injuries before cases, the clothing involved was ankles and wrists.(26) their standards and after. However, the specifically identified as sleepwear. In a 1993 letter, the director of fact that these other countries have also Nine of those cases involved whole- Canada’s Office of Product Safety told distinguished between safer close-fitting

VerDate 18-JUN-99 11:04 Jun 25, 1999 Jkt 183247 PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 E:\FR\FM\A28JN2.021 pfrm01 PsN: 28JNP1 Federal Register / Vol. 64, No. 123 / Monday, June 28, 1999 / Proposed Rules 34601 garments and more hazardous loose E. The GAO Report on Incident Data appeared to involve sleepwear or ones bolsters the Commission’s Congress directed GAO to review garments used as sleepwear occurring conclusions based on its review of ‘‘incident data relating to burns from the between 1993 and 1998. As GAO notes, research and incident data. Notably, ignition of children’s sleepwear from 28 of the 40 cases involved loose-fitting these other countries all allow garment small open flame sources for the period tee shirts, six cases involved nightgowns dimensions larger than those CPSC July 1, 1997 through January 1, 1999.’’ or nightshirts, three involved traditional specifies. P.L. 105–276. In its report GAO said it flame-resistant sleepwear, one involved a tight-fitting tee-shirt and two involved D. Statutory Provisions addressed the questions: ‘‘(1) how many burn injuries involving children’s cotton pajamas. While these 1. Authority for the Exemptions sleepwear occurred annually before and investigations do not provide a after the amendments? and (2) what statistical analysis, they confirm what The original children’s sleepwear conclusions, if any, can be drawn from the research shows and what other standards were issued under the these data about the effect of the countries have found. In a footnote, Flammable Fabrics Act (‘‘FFA’’), which changes to the sleepwear standard on GAO acknowledges that the patterns allows the Commission (previously the the risk of injury?’’(55) from these investigations ‘‘are consistent Secretary of Commerce) to issue a with data from other sources.’’ The flammability standard for a fabric or 1. Summary of Report footnote continues: product if needed to protect the public GAO concluded that data were not For example, we reviewed case files from against unreasonable risk of the sufficient to clearly answer either of one burn center that was not included in occurrence of fire leading to death, these questions. The report states that CPSC’s NEISS sample. These cases involved 12 injuries to children younger than 15 in personal injury or significant property ‘‘[t]he exact number of burn injuries associated with children’s sleepwear 1997 and 1998 that the staff at the burn damage. 15 U.S.C. 1193(a). The center identified as involving Commission issued the 1996 before and after CPSC amended its sleepwear. * * * Although burn center staff amendments under the same authority. standard is uncertain.’’ Id. Because few did not have information on the fabric In accordance with the procedures in sleepwear-related injuries are reported content of the children’s sleepwear for nine the FFA, 15 U.S.C. 1193(g), the annually to CPSC’s sample hospital cases they noted the general type of Commission first issued an ANPR emergency rooms, GAO concludes that sleepwear. The results from this small group ‘‘precise national estimates’’ are not were similar to those CPSC found—six of the beginning the rulemaking process. 58 possible, and it is therefore difficult to nine cases involved loose-fitting nightgowns FR 4111. After considering the observe injury trends. Id. The report or shirts. thousands of comments responding to notes that over the period 1990 to 1998, (55). Thus, the only additional data the ANPR, the Commission issued a NEISS reported only 13 cases and in GAO discusses affirm the Commission’s notice of proposed rulemaking as some years, such as 1998, no cases were assessment that it is looser garments required by the FFA, 15 U.S.C. 1193(i). reported at all. The report also asserts that pose a risk. The fact that 59 FR 53616. The Commission issued that, because multiple factors are conclusions are based on few cases does the final standard in accordance with involved in burn injuries, additional not undermine those conclusions when section 4(j) of the FFA, 15 U.S.C. information would be necessary to reach all available information supports them. 1193(j). 61 FR 47634. firm conclusions about the effect of the GAO’s criticism that more As discussed above, section 429 of the changes. In particular, the report asserts information on the factors involved in legislation that provided the that without data concerning the burn injuries is necessary to determine Commission’s appropriations for fiscal numbers of consumers who use each risk is unjustified. GAO’s example in its year 1999 required the Commission to type of sleepwear it is not possible to report illustrates this. The report states propose to revoke the 1996 sleepwear determine the type of sleepwear most that GAO reviewed a case in which a 6- exemptions and to issue a rule by July likely to be associated with injuries. Id. year-old girl wearing a nightgown backed into a space heater. From this 1 revoking, maintaining or modifying 2. Data Are Sufficient To Support example, GAO concludes: ‘‘It is the amendments. Public Law 105–276. Exemption The legislation states that neither the uncertain whether either reducing the FFA, the Consumer Product Safety Act, The GAO report correctly notes that flammability of the nightgown or few burn incidents involving sleepwear nor any other statute applies to this improving the design or performance of have been reported through NEISS over proceeding. Thus, the Commission is the space heater could have prevented the period 1990 to 1998. However, the her injury.’’(55) This example confirms not required to follow the process or fact that only 13 cases have been the Commission’s conclusions. The girl make the findings the FFA directs. reported during this period does not was wearing a nightgown, precisely the Rather, in determining what action to invalidate that data. One can correctly type of clothing the Commission’s take on the 1996 exemptions, Congress conclude, as GAO acknowledges, that analysis shows is most likely to be instructed the Commission to the risk of injury from such incidents is involved in burn injuries. Nightgowns ‘‘consider[] and substantively address[] small.(55) These data are sufficient to continue to be covered by the sleepwear the findings of the General Accounting provide an estimate of injuries, which is standard as amended by the 1996 Office and other information available the purpose of NEISS. exemptions. Thus, the example is not to the Commission.’’ Id. As discussed The GAO report underemphasizes an relevant to the question of risk posed by above, the Commission has important part of the Commission’s exempt garments. reconsidered the information on which examination of incident data. Because it More information concerning the use the 1996 amendments were based and is difficult to obtain details from of different types of sleepwear (for believes that information still supports information in NEISS reports, the example from a use survey) is not the exemptions. The following sections Commission conducts in-depth necessary to an informed and supported discuss the Commission’s consideration investigations of selected incidents. The Commission decision, as the report of the GAO reports and the comments staff conducted 40 such investigations itself illustrates. As GAO acknowledges, presented to the Commission. of clothing-related incidents that the patterns the Commission has

VerDate 18-JUN-99 11:04 Jun 25, 1999 Jkt 183247 PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 E:\FR\FM\A28JN2.022 pfrm01 PsN: 28JNP1 34602 Federal Register / Vol. 64, No. 123 / Monday, June 28, 1999 / Proposed Rules observed that loose clothing is more sleepwear safety. About 63 percent of (including infant sizes 0 to 9 months likely to be involved in burn incidents stores mixed other clothing (such as and tight-fitting sleepwear in larger ‘‘are consistent with data from other long underwear and loose-fitting shirts) sizes) must still meet the less stringent sources.’’(55) These patterns have been along with sleepwear in retail displays. general clothing textile flammability consistent before the standards were GAO concluded that consumers requirements of 16 CFR 1610. promulgated in 1971 to the present generally get some information from Comment: A number of commenters time. They are consistent with research, point of sale materials, but not to the believed that the Commission issued the and they are consistent with other extent the Commission had envisioned. 1996 amendments with the expectation countries’ experiences. With this GAO found that concerns about the that consumers would switch to tight- consistent information, a use survey is initial acceptance of tight-fitting fitting sleepwear from loose-fitting tee- unnecessary. sleepwear and fears that the standards shirts. The report states that tight-fitting might change made industry reluctant to Response: The 1996 amendments pajamas designed to meet the exemption provide more I&E.(70) were intended to provide consumers have only been available for a short The Commission believes that who prefer natural fibers (cotton) with period of time so one cannot determine consumers need information to choose a safer alternative to the loose-fitting, if they are more hazardous. However, appropriate sleepwear. The GAO report non-complying garments used close-fitting underwear similar to confirms that some information, frequently as sleepwear, such as long sleepwear has been available under the particularly on hangtags, is available, underwear. While the staff did not stay of enforcement since 1993. For as but more needs to be done. The labeling necessarily expect consumers using tee- far back as 15 years prior to the stay of rule the Commission is adding to the shirts to switch to the tight-fitting enforcement, Compliance staff took standards should ensure that consumers garments, they did anticipate that any action against the companies marketing have the information they need about such substitutions by consumers could these garments in violation of the the importance of fit for tight-fitting reduce the number and severity of burn standard. There have not been any sleepwear. injuries should they occur. reports of incidents involving these types of garments. G. Comments on the Proposed Motive for Amendments The GAO report looks at sleepwear Revocation Comment: Some commenters incident data in isolation. However, the In accordance with the appropriations suggested the Commission had an Commission’s decision on the legislation, on January 19, 1999 the economic motive, responding to exemptions was based on all available Commission proposed to revoke the influence by the cotton industry, for information since 1971. The NEISS 1996 amendments. 64 FR 2867. The amending the sleepwear standards. incident data constituted just one part of Commission received over 3,400 Response: The amendments were not this information. The Commission comments in response. The Commission based on pressure from any outside continues to believe that the incident heard from fire safety professionals, interests, but on two principles: (1) data support the conclusion that the physicians, parents, farmers, sleepwear safety and (2) enforcement. As exempt garments do not pose an manufacturers and retailers, consumer discussed above, the Commission unreasonable risk of burn injuries. advocates, and members of Congress. studied this issue for several years, relying on laboratory and other F. The GAO Report on the Information Although not required by the analytical data, including injury and and Education Campaign appropriations language, the Commission held a public hearing on death data, to arrive at its conclusions. The Conference Committee Report on The Commission believed that the the appropriations bill that required the April 22, 1999. Twenty-one people testified. Many of these had also sent exemptions would allow more effective Commission to propose to revoke the enforcement of the sleepwear standards sleepwear amendments directed GAO to written comments responding to the proposed revocation. and would provide a safer cotton assess the information and education alternative. (‘‘I&E’’) campaign that industry and the Below is a summary of the principal Commission conducted (H.R. Rep. No. issues the written comments and the Findings Supporting the Amendments 769, 105th Cong., 2d Sess. 267 (1998)). hearing testimony raised, along with the Comment: Two commenters argued When the Commission issued the 1996 Commission’s responses. that the amendments were issued amendments it recognized that 1. General Comments without the proper findings of consumers needed information about unreasonable risk required by the the changes. The industry, particularly Scope of the Standards and Exemptions Flammable Fabrics Act. One commenter the American Apparel Manufacturers Comment: Some commenters had the stated that CPSC never showed that the Association (‘‘AAMA’’), volunteered to impression that the exemption net effect of the amended standards on work with the Commission in eliminated all clothing flammability all affected children would be developing appropriate materials and requirements for children’s sleepwear. beneficial. making them available to consumers. Others believed that the amendments Response: The 1996 amendments The GAO report assessed the did not affect loose pajamas, exempted specified garments from the availability of such I&E materials. nightgowns, and robes, which are the children’s flammability standard. GAO visited more than 70 retail stores kind of nightwear involved in burn Because they were exemptions, the in 14 metropolitan areas across the injuries and fatalities. correct question was not whether these country. It found hangtags on 73 percent Response: The Commission exempted garments posed an unreasonable risk of of tight-fitting sleepwear garments. The infant sleepwear and only one limited fire, but whether taking those garments most common hangtags were the ones style of sleepwear (defined as tight out of the standard would reduce the that AAMA designed. The other types of fitting) in larger sizes. Other sleepwear level of safety and expose the public to hangtags varied greatly in design but garments like nightgowns, robes, and an unreasonable risk. As explained in had similar language. Fewer than 16 looser-fitting pajamas remain subject to the preamble to the 1996 amendments, percent of stores displayed consumer the requirements for flame resistance. the original 1971 and 1974 flammability education brochures or signs about Exempted children’s sleepwear standards reached farther than

VerDate 18-JUN-99 11:04 Jun 25, 1999 Jkt 183247 PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 E:\FR\FM\A28JN2.024 pfrm01 PsN: 28JNP1 Federal Register / Vol. 64, No. 123 / Monday, June 28, 1999 / Proposed Rules 34603 necessary to protect the public. Garment Returns From Retail Sales clothing-related burn deaths reported by Inclusion of infant garments and tight- Comment: One commenter, a major the National Center for Health Statistics fitting garments meant the standards retailer of children’s clothing, noted that (‘‘NCHS’’). The NCHS mortality files were not reasonably necessary to protect it has experienced returns of tight-fitting providing these data do not distinguish the public; the standards were not sleepwear at about 8% of sales, which sleepwear-related burn cases from other limited to garments that present an it describes as high. clothing-related burn cases. There are unreasonable risk of injury. Response: The Commission expected no reliable data on the number of some consumer returns of tight-fitting sleepwear-related deaths before the 2. Children’s Sleepwear Marketing standards were issued that could be Issues sleepwear during the transition period following the exemption of these compared with data assembled Availability of Tight-Fitting Sleepwear garments. Manufacturers contacted by thereafter. Comment: Several commenters the Commission staff late in 1998 Mobility of Infants Wearing Sizes 0–9 indicated returns ranging from thought that tight-fitting garments have Comment: Many commenters rejected only been available since the exemption ‘‘negligible’’ to 5%, considered high. the contention that infants wearing sizes became effective in January 1997, and, The retailer in the current comment 0–9 months are immobile. ‘‘These therefore, it would be difficult to noted that consumers were not seeking children may not be able to walk; determine their safety. refunds, but rather were exchanging the however, they certainly can crawl or garments for a larger size. Except for Response: As discussed above, non- roll, which may put them in a situation some marginal costs associated with the flame resistant garments of this style where they may be exposed to open transaction costs of the exchange, (skin-tight or nearly skin-tight) have flame.’’ retailers are not likely to bear a been used as sleepwear with increasing An industry commenter stated at the significant cost burden associated with frequency for at least 20 years. During April 22 hearing that infant sizing is not returns. With the clarification of the 1980’s the Compliance staff saw an true to age (it is not standardized by measurements, availability of increase in the number of cotton regulation). She stated that an infant stretchable fabrics, manufacturer garments labeled as ‘‘long underwear’’ who is six months of age wears a 12 adjustments to new design and or ‘‘playwear’’ that appeared to be month size, and an infant who is 5 production demands, increasing sleepwear. months of age probably wears a 9 month consumer familiarity with the fit of this Industry sources estimate that, before size, and would not likely be mobile. style of garment, returns and exchanges Response: In 1993, CPSC staff the staff started work on the should decrease. amendments in 1992, the share of total reported from the literature that infants’ sleepwear purchases accounted for by Costs of Revocation first ambulatory motions usually consist complying cotton garments was about of crawling-type movements, which Comment: Commenters noted that begin around 7 to 8 months of age. 1–2%. According to National Purchase manufacturers and others have borne Diary data, cotton sleepwear (the Industry representatives had previously significant costs in order to produce and reported, as above, that infant sizing is consumer’s intended use) purchases market tight-fitting sleepwear garments have increased from 9.7% to 27.5% of not true to age. Most likely, an infant six under the exemption. A trade group months or younger would be wearing the total sleepwear purchases from 1992 noted that firms changed their business to 1998. garments sized 9 months and under. practices as a result of the amendments, These children are typically not yet Effect of Cotton Sleepwear Sales on FR but they did not quantify the associated walking or crawling. The definition of (Polyester) Sales costs. A retail chain reported that infant garment in section 1615.1(c)(2) revocation would cost that firm Comment: One commenter suggested accommodates all but the largest 6 approximately $7 million. month old infants. (ASTM Standard D that with the emergence of cotton Response: The Commission agrees 4910–95.) garments, flame-resistant children’s that there would be some costs to sleepwear would be forced out of the manufacturers and others associated Relationship of Mobility to the Risk of market and manufacturers would find with revocation, but does not have Burn Injury that they could not sell flame-resistant information to quantify those costs. The Comments: Many commenters sleepwear. Commission is not basing its rejected the claim that the risk of burn The American Apparel Manufacturers withdrawal of the proposed revocation injury to infants is minimal because of Association stated that ‘‘polyester on the fact that industry would incur their immobility. Commenters note that garments still dominate the market for some costs if the amendments were infants are less able to remove children’s sleepwear. Sales of synthetic withdrawn. themselves from a potentially dangerous pajamas are very strong and are 3. Death/Injury Data Involving situation. Ignition sources also come to expected to remain so for the Children’s Sleepwear them. Many commenters argued that the foreseeable future.’’ relative immobility of infants puts them Response: Information from the Trend in Clothing-Related Burn at greater risk, not less, of being severely National Purchase Diary shows that Fatalities burned in an otherwise minor purchases of children’s sleepwear are Comment: Some commenters asserted conflagration. increasing. While the proportion of that enactment of the sleepwear Response: CPSC knows of several cotton sleepwear purchases is growing, standard in 1972 reduced the number of incidents in which a fire started by the market for other sleepwear (flame- annual sleepwear-related burn deaths another child or source approached and resistant) has steadily increased in from 60 to 4. Others have expressed this ignited the clothing of a pre-ambulatory volume from 106.6 million in 1992 to in reverse—there would be ten times as infant who thereby sustained severe 112.5 million garments in 1998. Flame- many deaths without the sleepwear burns from burning clothing. However, resistant polyester garments reportedly standard. analyses of over 150 potentially represented over 70% of the total Response: These assertions are survivable fire and thermal burn cases children’s sleepwear purchases in 1998. incorrect because they refer to all involving infants 0–9 months old from

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January 1990 to May 1999 in CPSC files estimated that burn units across the scenario that the standard does not revealed insufficient information about country have treated approximately 472 address. One commenter was a burn the type of clothing involved in these sleepwear-related thermal burn injuries victim whose only injury was singed cases to determine whether the type of to victims 0–9 months old since January hair when his ‘‘tight-fitting’’ (by his clothing would affect the likelihood or of 1997. He argued that the severity of description) thermal underwear ignited severity of injury. cases like these could be positively from a stove burner. This case and affected by a return to flame-resistant Validity of CPSC Data another involving a tight-fitting tee-shirt sleepwear for infants. illustrate how the fit of a garment can Comment: Many commenters Response: The typical scenarios minimize injury severity when exposed questioned the validity of CPSC data involving infants are bedding or larger to a small ignition source. indicating a low, stable frequency of room/house fires. The children’s sleepwear-related thermal burn injuries. sleepwear standards were not intended 4. Safety-Related Technical Information They asserted that ‘‘problems in the to address the risk of death and injury Fires Addressed by the Standards reporting of burn injuries’’ are a partial from exposure to a whole house or explanation that some argue there has bedding fire. The test method in the Comment: A number of commenters been no increase in the number of burn standards uses a three second exposure expressed concerns that the exemptions injuries and deaths since the standard to a moderate sized flame and a would eliminate protection of children changed. The GAO report asserted that requirement that the fabric self- from a variety of fire scenarios, CPSC’s sleepwear burn data were both extinguish. The ignition source in the including house fires and bedding/ too sparse to provide reliable national fire scenarios mentioned by commenters mattress fires. Others claimed that estimates and subject to coding biases is larger and more intense and sustained injuries would be less severe in these possibly leading to underestimation of well beyond three seconds. The heat cases had victims been wearing flame- sleepwear-related burns. released and temperatures produced in resistant sleepwear. Other commenters Response: There is no reason to larger fire scenarios easily exceed the argued that although these cases are believe that the number of burn injuries temperatures produced by the small tragic and still occur, the standard in the U.S. is underestimated by CPSC’s open flame sources. Because of the (flame-resistance) does not protect National Electronic Injury Surveillance fabrics’ melting and ignition against injuries from house fires or the System. The NEISS sample of 101 temperatures and the high temperatures rare infant crib/bedding fires. hospitals, 2.2% of the universe of 5,387 and sustained fire growth that occurs in Response: As discussed above, the U.S. emergency-room hospitals, these larger fire scenarios, and the many children’s sleepwear standards were not includes 4 or 4% of the 119 hospitals other factors affecting the outcome of an intended to address the risk of a whole that are self-identified burn treatment incident, flame-resistant sleepwear house or bedding fire. The intent of the centers. Although some severely burned garments cannot be counted on to sleepwear standards is to eliminate the children may be admitted directly to provide enough protection to prevent risk of serious personal injury or death burn treatment facilities, more often life-threatening burn injury from from fire as a result of contact between such victims are taken to the nearest occurring in these scenarios. the sleepwear garment and a small hospital emergency room for Comment: Burn centers, burn victims, ignition source. Even flame-resistant stabilization and later transferred to and others shared information on sleepwear may not prevent burn injury burn treatment facilities. These transfer various burn injury cases arguing that in a whole house or bedding fire. cases would be reported through NEISS. the exemptions should be revoked to Importance of Fit Although estimates of infrequent prevent an increase in burn injuries. occurrences are subject to relatively Response: The CPSC staff investigated Comment: A number of commenters large variances, NEISS does provide a all cases possible within the time expressed concerns that the powerful case-finding tool with 101 constraints of this proceeding. Four combination of non-flame resistant hospitals searching for sleepwear burns. Shriners burn hospitals referred 134 material and loose fit are dangerous. Each case is carefully reviewed and any cases involving thermal burns from Others argued that tight fit is a serious burn cases are quickly identified children’s clothing to the CPSC staff. reasonable choice with reduced and investigated. A change in frequency Most of these involved garments or fire likelihood of ignition. of sleepwear-related pediatric burn scenarios not addressed by the Response: As discussed above, injuries would be readily detected, sleepwear standard. The staff requested garment fit, along with fiber content can while a change in severity would be for investigation 30 cases meeting influence a garment’s flammability. more difficult because of the few certain criteria relevant to this Children’s sleepwear made from cotton sleepwear-related burn cases reported in proceeding. With permission from the fabric needs to fit close to the body, to NEISS. hospitals and victims’ families, the staff provide an acceptable level of risk. completed analysis of 21 cases. The There is a great deal of information in Infant Exemption’s Likely Effect on CPSC in-depth investigations revealed the literature discussing the concept of Burn Injuries that none of these cases involved tight-fitting garments being less Comment: Several commenters garments exempted from the standard hazardous than loose-fitting garments. (physicians) gave accounts of cases by the 1996 amendments or garments The ease of ignition increases when the where they believe flame-resistant previously subject to the stay of wearer’s clothing stands away from the sleepwear could or did, in their opinion, enforcement. body and the excess fabric functions as reduce the severity of the injuries Several commenters were burn a connector to the ignition source. sustained by infants and other children victims or parents of burn victims. Two Without a tight fit, if ignition occurs, the in fires. In some of these cases, they said of the garments involved in these oxygen under the garment and the children had burns on the exposed incidents were nightgowns. These absence of a heat sink (the body) portions of their bodies while those garments must still be flame-resistant increase the opportunity for sustained areas covered by the flame retarded under the 1996 amendments. Another burning. Research indicates that clothing were not injured. A surgeon case involved an infant wearing a cotton reasonably safe sleepwear garments can heading a burn treatment facility, sleeper injured in a bedding fire, a be made from cotton fabrics that do not

VerDate 18-JUN-99 11:04 Jun 25, 1999 Jkt 183247 PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 E:\FR\FM\A28JN2.026 pfrm01 PsN: 28JNP1 Federal Register / Vol. 64, No. 123 / Monday, June 28, 1999 / Proposed Rules 34605 meet the flammability requirements of investigations. The staff cannot of label messages, and absence of the children’s sleepwear standards, i.e. conclude based on available data that information for the consumer. they do not self-extinguish. there are substantial benefits associated Response: Many of these criticisms Comfortable, practical, tight-fitting with the sleepwear standards beyond appear valid. Commenters reported that sleepwear can and is being produced those represented by the test method. the current labeling on the hangtags is that is acceptable to consumers. not distinctive or conspicuous but is Upsizing Practices mixed with promotional and brand Fire Safety Comment: Commenters noted that literature. The hangtags are not Comment: One commenter asserted parents may ‘‘upsize,’’ that is, buy consistent, and wording on that non-flame resistant cotton sleepwear in sizes larger than their permanently-affixed labels is sleepwear is dangerous based on a local children’s current size, because they indistinguishable from size and washing fire department demonstration in which will get longer wear from the garments. instructions. The Commission’s labeling two sleepwear garments, one flame- In store interviews, customers indicated requirement will address these resistant and the other untreated cotton that if they were to purchase tight-fitting concerns. were burned. sleepwear, they would buy a larger size. Response: It is not surprising that the Others added concerns that handing 6. Garment Design and Production commenter observed that the cotton down clothes to younger children and Issues sleepwear ‘‘flamed up and burned very second hand sales will interfere with Expansion of Tight-Fitting Dimensions quickly.’’ Light weight, cellulosic fabrics parents using the correct garment size. Comment: Several commenters usually ignite readily when in contact Response: Commenters provided no recommended increasing slightly the with an ignition source, burn steadily, information about whether parents are dimensions, especially the upper arm, and are often difficult to extinguish. actually buying larger sizes for tight- that define a tight-fitting garment Flame-resistant fabrics made from fitting sleepwear. The staff contacted exempt from children’s sleepwear thermoplastic fibers are not as easily manufacturers and retailers for this flammability standards. They argued ignited and have a tendency to shrink perspective. A representative of a that this may make the garments more away from the heat source. These fabrics sleepwear retailer, based on discussions attractive to parents currently avoiding self-extinguish when the flame source is with parents during garment fittings, tight-fitting sleepwear without removed. believes that parents would probably compromising the garment’s safety. A The fire department demonstration purchase only one size larger, otherwise did not take into account garment slightly larger garment, they argued, is the garment would be too large (i.e. the design, one of the major factors far safer than an oversized tee shirt. legs and sleeves would be too long). A influencing a garment’s flammability. A Response: Commission staff carefully manufacturer/retailer of successful tight fit reduces the possibility of considered the option to allow a less tight-fitting sleepwear does not believe ignition occurring. If ignition of tight- than tight fit for exempted children’s their customers are upsizing. fitting clothing occurs, flame spread is sleepwear when amending the During the development of the slower and less intense, allowing the sleepwear standards. The reduced technical amendments in 1997, the staff wearer to take action sooner. Because probability of ignition of tighter-fitting observed that garments using fabrics tight-fitting clothing is less likely to clothing is related to three factors: the with adequate stretch provided children support flame propagation, it is often limited supply of oxygen from with ample room for movement and easier to extinguish the flames. underneath the garment, the role that comfort while maintaining the tight fit Comment: Commenters presented the body plays as a heat sink, and required by the exemption. The staff differing views concerning the relative reduced likelihood of contacting the also observed children wearing protection offered by cotton and flame- flame source. However, while a tighter- garments one size larger than their age- resistant garments in house and bedding fitting garment can reduce the appropriate size. The differences in fires. Medical professionals noted cases possibility of the garment coming in garment dimensions between sizes are where exposed portions of a child’s contact with a source of ignition, a small. The larger garments still body were burned but portions covered review of the literature did not reveal a conformed to the contours of the by flame-resistant garments were not. specific safe level or range of fit. The children’s bodies, touching them at The National Cotton Council stated that Commission concluded that for tight- many points, thus reducing the cotton sleepwear may be slightly more fitting garments to be exempt from the likelihood of ignition. protective than flame-resistant garments children’s sleepwear standards, the Informational labeling is important for in a crib or house fire. garment must touch the body at all tight-fitting children’s sleepwear to help Response: The fire scenarios critical locations. To do this, children’s consumers distinguish among flame- described above are not addressed by sleepwear garments must be equal to or resistant and non-flame-resistant (tight- the children’s sleepwear standards that less than the body dimension at these fitting) garments. Consumers need to be define the protection provided in terms locations. Comfortable, tight-fitting informed that certain sleepwear is no of self-extinguishment after a 3 second sleepwear garments are currently being longer flame-resistant and that proper fit exposure to a small gas burner flame. A manufactured and successfully is necessary for safety. number of variables contribute to the marketed without making additional outcome of burn injury such as the 5. Information and Education Campaign dimensional adjustments with a circumstances surrounding the incident, questionable impact on safety. the victim’s reaction/activity, the fabric Confusion in the Market Place characteristics (weight, weave, finishes/ Comment: Many commenters Sewing Tolerances treatments applied, fiber content, dyes, criticized the voluntary information and Comment: An industry commenter etc.), size of the flame and the garment education program as inadequate and again requested that the standard be location contacted by the flame, flame confusing in the market place. Several amended to allow specific tolerances to propagation, rate of heat transfer, commenters surveyed retail stores and accommodate mass-production presence of undergarments, etc. Much of reported on the mixing of garment variances and sewing errors. Such this data cannot be obtained through types, inconspicuity and inconsistency tolerances, a long-recognized practice in

VerDate 18-JUN-99 11:04 Jun 25, 1999 Jkt 183247 PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 E:\FR\FM\A28JN2.028 pfrm01 PsN: 28JNP1 34606 Federal Register / Vol. 64, No. 123 / Monday, June 28, 1999 / Proposed Rules the apparel industry, would provide revocation of January 19, 1999, 64 FR ‘‘Human Factors Issues Regarding sleepwear makers and retailers with a 2867. Sleepwear,’’ and attachment; March 8, 1994. 15. Memorandum from George Sweet, workable margin of error. Dated: June 22, 1999. Response: The Commission EPHF, to Terrance R. Karels, ECPA, entitled Sadye E. Dunn, ‘‘Garments Intended for Infants’’; July 8, recognizes that tolerances are normally Secretary, Consumer Product Safety 1994. used in the production of all garments Commission. 16. ‘‘Preliminary Regulatory and and allow for permissible variations to Regulatory Flexibility Analyses for the List of Relevant Documents the pattern specifications that can occur Proposed Amendments to the Children’s during cutting or sewing of the garment. 1. Memorandum from Liz Gomilla, Flammability Standards,’’ by Anthony C. However, adding a production tolerance Division of Regulatory Management and Eric Homan, Directorate for Economic Analysis; which would increase the garment Stone, Division of Administrative Litigation, June, 1994. to Terrance R. Karels, Project Manager, dated dimensions from those specified in the 17. ‘‘Market Sketch—Children’s March 13, 1992, entitled ‘‘Problems Sleepwear,’’ by Anthony C. Homan, amended children’s sleepwear Associated with Enforcement of the standards, would result in a less than Directorate for Economic Analysis; March, Children’s Sleepwear Standards.’’ 1992. 2. Memorandum from Bea Harwood and tight-fitting garment. The importance of 18. Memorandum from Eva S. Lehman, Terry L Kissinger, EPHA, to Terrance R. a tight fit has been stated earlier. Knit HSPS, to Terrance R. Karels, ECPA, entitled Karels, Project Manager, dated April 20, fabrics are available with a sufficient ‘‘Toxicological Evaluation of Fabrics Used in degree of stretch so that the garment 1992, entitled ‘‘Injury Data Related to the Sleepwear Flammability Standards and Children’s Sleepwear’’; June 7, 1994. would still fit the intended size child Information on Surveys of Burn Treatment 19. Memorandum from Patricia Fairall, even if the manufacturer undercuts the Centers.’’ CERM, to Terrance Karels, ECPA, entitled fabric somewhat. Sleepwear garments 3. Memorandum from Linda Fansler, ‘‘Compliance History—Enforcement of manufactured to the dimensions ESME, to Terrance R. Karels, ECPA, dated Children’s Sleepwear’’; 6 pages; April 20, specified in the sleepwear standards May 6, 1992, entitled ‘‘Final Report, 1994. using such knit fabrics are currently Children’s Sleepwear Project.’’ 20. Memorandum from James F. Hoebel, Acting Director, ESME, to Terrance R. Karels, being sold to consumers. 4. Memorandum from Anthony C. Homan, ECPA, to Terrance R. Karels, Project ECPA, entitled ‘‘Amendments to Children’s 7. Compliance Issues Manager, dated March 25, 1992, entitled Sleepwear Standards’’; July 7, 1994. ‘‘Market Sketch—Children’s Sleepwear.’’ 21. Memorandum from Dr. Terry L. Comment: One commenter questioned 5. Briefing Memorandum from Terrance R. Kissinger, EPHA, to Terrance R. Karels, the Commission’s efforts to enforce the Karels to the Commission, dated November 3, ECPA, entitled ‘‘Proposed Amendment to amended standards that exempt tight- 1992. Children’s Sleepwear Standards’’; July 15, fitting sleepwear garments. 6. Federal Register notice ‘‘Standards for 1994. Response: Earlier this year, the the Flammability of Children’s Sleepwear: 22. Federal Register notice ‘‘Standard for Sizes 0 Through 6X and 7 Through 14; Commission staff initiated a program for the Flammability of Children’s Sleepwear: Advance Notice of Proposed Rulemaking,’’ Sizes 0 Through 6X; Standard for the CPSC investigators to inspect retail published by the Consumer Product Safety Flammability of Children’s Sleepwear: Sizes stores throughout the United States to Commission; January 13, 1993 (58 FR 4111). 7 Through 14; Proposed amendments’’ determine whether sleepwear marketed 7. Federal Register notice ‘‘Standards for published by the Consumer Product Safety and promoted as being tight-fitting the Flammability of Children’s Sleepwear: Commission; October 25, 1994 (59 FR 53616). meets the measurements required for an Sizes 0 Through 6X and 7 Through 14; Stay 23. Federal Register notice ‘‘Continuation exemption. This program is continuing, of Enforcement,’’ published by the Consumer of Stay of Enforcement of Standards for the Product Safety Commission; January 13, 1993 Flammability of Children’s Sleepwear, Sizes and the staff is conducting full (58 FR 4078). investigations of firms found to be 0 Through 6X and 7 Through 14’’ published 8. Tabular summaries of comments and by the Consumer Product Safety selling or manufacturing violative staff responses to comments to the Advance merchandise. The staff also learns of Commission; October 25, 1994 (59 FR 53584). Notice of Proposed Rulemaking; 50 pages; 24. Comments on proposed amendments. July 19, 1994. potential violations from firm 25. Memorandum from Terry L. Kissinger, 9. ‘‘Statement by The Children’s Sleepwear inspections, incident investigations, and Ph.D., EHHA, to Terrance R. Karels, ECPA, Coalition In Response to the Consumer trade complaints. entitled ‘‘Injury Data Related to the Product Safety Commission’s Advance Children’s Sleepwear Standards’’; July 12, H. Date of Withdrawal Notice of Proposed Rulemaking’’; March 25, 1993. 1995. The proposed revocation of the 1996 10. Memorandum from Linda Fansler, 26. Letter from Carole LaCombe, Director, amendments is withdrawn on the date ESME, to Terrance R. Karels, ECPA, entitled Product Safety Canada, to Eric C. Peterson, of publication. Because revocation was ‘‘Technical Rationale Supporting Tight- Executive Director, Consumer Product Safety proposed but never finalized, Fitting Children’s Sleepwear Garments’’; Commission, concerning Canadian standards withdrawal of the proposal does not March 14, 1994. for the flammability of children’s sleepwear; September 13, 1993. make any substantive change. Therefore, 11. Memorandum from Linda Fansler, ESME, to Terrance R. Karels, ECPA, entitled 27. Memorandum from Linda Fansler, ES, it is unnecessary to delay the concerning telephone conversation between withdrawal of the proposed revocation. ‘‘Recent Conversation Between Staff of Consumer and Corporate Affairs Canada and staff of the Consumer Product Safety List of Subjects in 16 CFR Parts 1615 Commission Staff’’; July 17, 1992. Commission and staff of Consumer and and 1616 12. Memorandum from Dr. Terry L. Corporate Affairs Canada on June 18, 1992, Kissinger, EPHA, to Terrance R. Karels, concerning the Canadian standards for the Clothing, Consumer Protection, ECPA, entitled ‘‘Injury Data Related to the flammability of children’s sleepwear. Flammable materials, Infants and Children’s Sleepwear Standards’’; February 28. Memorandum from Linda Fansler, children, Labeling, Reporting and 8, 1994. ESME, to Terrance R. Karels, ECPA, entitled recordkeeping requirements, Sleepwear, 13. Memorandum from Dr. Terry L. ‘‘Tight Fitting Children’s Sleepwear’’; July 14, 1995. Textiles, Warranties. Kissinger, EPHA, to Terrance R. Karels, ECPA, entitled ‘‘Results of Review of 29. Memorandum from Terrance R. Karels, Conclusion Available Literature,’’ and attachments; April Project Manager, to Warren J. Prunella, 1, 1994. Associate Executive Director for Economic Pursuant to Public Law 105–276, the 14. Memorandum from George Sweet, Analysis, entitled ‘‘Sleepwear Market Commission withdraws the proposed EPHF, to Terrance R. Karels, ECPA, entitled Update’’; October 6, 1995.

VerDate 18-JUN-99 11:04 Jun 25, 1999 Jkt 183247 PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 E:\FR\FM\A28JN2.029 pfrm01 PsN: 28JNP1 Federal Register / Vol. 64, No. 123 / Monday, June 28, 1999 / Proposed Rules 34607

30. Final Regulatory Analysis for 47. Memorandum from Warren J. Prunella, Directorate for Engineering Sciences, amendments of the children’s sleepwear Associate Executive Director for Economic ‘‘Enforcement History of Children’s standards by Terrance R. Karels; July 1995. Analysis, to Eric A. Rubel, General Counsel, Sleepwear Standards,’’ May 12, 1999. 31. Memorandum from David Schmeltzer, concerning requirements for Congressional 60. Memorandum from Terence R. Karels, Assistant Executive Director for Compliance, review of final amendments to the children’s EC, to Margaret Neily, ES, ‘‘Children’s to Terrance Karels, Project Manager, entitled sleepwear standards; undated. Sleepwear Revocation Project,’’ May 27, ‘‘Sleepwear Briefing Package’’; August 24, 48. Vote sheet to accompany briefing 1995. package on children’s sleepwear 1999. 32. Memorandum from Patricia Fairall, flammability standards; October 11, 1995. 61. Memorandum from Terence R. Karels, Compliance Officer, to Terrance Karels, 49. Memorandum from Terrance R. Karels, EC, to Margaret Neily, ES, ‘‘Children’s Project Manager, entitled ‘‘Compliance Project Manager, and Ronald L. Medford, Sleepwear—Issues Related to Proposed Discussion of the Proposed Amendments to Assistant Executive Director for Hazard Revocation,’’ May 27, 1999. the Children’s Sleepwear Standards’’; June Identification and Reduction entitled 62. Memorandum from C. Craig Morris, 26, 1995. ‘‘Questions Regarding Children’s Sleepwear EHHA, to Margaret Neily, ESME, 33. Memorandum from Terry L. Kissinger, Amendments,’’ with attachments; January 30, ‘‘Sleepwear-Related Thermal Burns in Ph.D., EHHA, to Terrance R. Karels, ECPA, 1996. Children under 15 Years Old,’’ June 1, 1999. entitled ‘‘Response to Public Comments 50. Federal Register notice ‘‘Proposed 63. Memorandum from C. Craig Morris, Received after Publication of the Notice of Technical Changes; Standard for the Proposed Rulemaking’’; July 12, 1995. Flammability of Children’s Sleepwear: Sizes EHHA, to Margaret Neily, ESME, ‘‘Response 34. Memorandum from George Sweet, 0 Through 6X; Standard for the Flammability to Public Comments Related to the Children’s EPHF, to Terrance R. Karels, ECPA, entitled of Children’s Sleepwear; sizes 7 Through 14’’ Sleepwear Flammability Requirements for ‘‘Human Factors Responses to Sleepwear published by the Consumer Product Safety sizes 0 to 9 Months,’’ May 28, 1999. NPR Comments’’; May 5, 1995. Commission, May 21, 1998 (63 FR 27877). 64. Memorandum from Carolyn Meiers, ES, 35. Memorandum from Linda Fansler, Corrected on June 11, 1998 (63 FR 31950). to Margaret Neily, ES, ‘‘Human Factors Issues ESME, to Terrance R. Karels, ECPA, entitled 51. Federal Register notice ‘‘Proposed in Sleepwear,’’ May 27, 1999. ‘‘Response to Comments’’; July 14, 1995. Clarification of Statement of Policy; Standard 36. Memorandum from Suad Nakamura, 65. Memorandum from Carolyn Meters, ES, for the Flammability of Children’s Sleepwear: to Margaret Neily, ES, ‘‘Labeling of Tight- Ph.D., EHPS, to Terrance R. Karels, Project Sizes 0 Through 6X; Standard for the Fitting Sleepwear,’’ May 27, 1999. Manager, entitled ‘‘Children’s Sleepwear— Flammability of Children’s Sleepwear; sizes 66. Memorandum from Linda Fansler, ES, Response to Comments on the Notice of 7 Through 14’’ published by the Consumer Proposed Rulemaking’’; July 19, 1995. Product Safety Commission, May 21, 1998 to Margaret Neily, ES, ‘‘Review of Foreign 37. Memorandum from Patricia Fairall, (63 FR 27885). Flammability Standards for Children’s Compliance Officer, to Terrance R. Karels, 52. Federal Register notice ‘‘Final Sleepwear,’’ May 25, 1999. Program Manager, entitled ‘‘Response to Technical Changes; Standard for the 67. Memorandum from Linda Fansler, ES, Comments from Proposed Amendments to Flammability of Children’s Sleepwear: Sizes to Margaret Neily, ES, ‘‘Response to the Children’s Sleepwear Standards published in the Federal Register on October 0 Through 6X; Standard for the Flammability Comments Received as a Result of Publishing 25, 1994’’; June 26, 1995. of Children’s Sleepwear; sizes 7 Through 14’’ the Children’s Sleepwear Revocation 38. Memorandum from Terry L. Kissinger, published by the Consumer Product Safety Proposal,’’ May 28, 1999. Ph.D., EHHA, to Terrance R. Karels, ECPA, Commission, January 19, 1999 (64 FR 2833). 68. Log of Telephone Call, Linda Fansler, entitled ‘‘Response to Letter from John 53. Federal Register notice ‘‘Final LSE, with Ms. Christine Simpson, Health Clarification of Statement of Policy; Standard Krasny to James Hoebel’’; August 3, 1995. Canada, Product Safety Bureau, March 31, for the Flammability of Children’s Sleepwear: 39. Memorandum from George Sweet, 1999. ESHA, to Terrance R. Karels, ECPA, entitled Sizes 0 Through 6X; Standard for the Flammability of Children’s Sleepwear; sizes 69. Memorandum from Margaret L. Neily, ‘‘Issues involved in amendment the ES, to File, ‘‘Analysis of Public Comments on sleepwear flammability regulation: Sizing 7 Through 14’’ published by the Consumer Proposed Revocation of the 1996 and and Labeling’’; September 20, 1995. Product Safety Commission, January 19, 1999 40. Memorandum from Karen G. Krushaar, (64 FR 2832). Subsequent Amendments to the Children’s OIPA, to Terrance R. Karels, ECPA, entitled 54. Federal Register notice ‘‘Proposed Sleepwear Flammability Standards,’’ May 27, ‘‘Children’s Sleepwear Informational Revocation of Amendments; Standard for the 1999. Campaign’’; July 11, 1995. Flammability of Children’s Sleepwear: Sizes 70. United States General Accounting 41. Position statement of the National Fire 0 Through 6X; Standard for the Flammability Office Report to Congressional Committees Protection Association and the Learn Not to of Children’s Sleepwear; sizes 7 Through 14’’ and the Consumer Product Safety published by the Consumer Product Safety Burn Foundation in Opposition to the Commission, ‘‘Consumer Education Efforts Proposed Amendment of the Children’s Commission, January 19, 1999 (64 FR 2867). 55. United States General Accounting for Revised Children’s Sleepwear Safety Sleepwear Standards; July 1995. Standard’’ June 1999. 42. Letter from John F. Krasny to J.F. Office Report to Congressional Committees 71. Memorandum from Carolyn Meiers, ES, Hoebel concerning paper by Vickers, Krasny, and the Consumer Product Safety and Tovey entitled ‘‘Some Apparel Fire Commission, ‘‘Injury Data Insufficient to to Margaret Neily, ES, ‘‘Summary of GAO Hazard Parameters’’; July 17, 1995. Assess the Effect of the Changes to the report, ‘‘Consumer Education Efforts for 43. Memorandum from Linda Fansler, Children’s Sleepwear Safety Standard,’’ Revised Children’s Sleepwear Safety ESME, concerning telephone conversation GAO/HEHS–99–64, April 1999. Standard,’’ May 27, 1999. with John Krasny on September 20, 1995. 56. Memorandum from Martha A. Kosh, 72. Briefing Memorandum from Ronald L. 44. Log of public meeting conducted on OS, to Sadye E. Dunn, Secretary, OS, Medford, Office of Hazard Identification and April 25, 1995, concerning proposed ‘‘Sleepwear Revocation,’’ list of comments on Reduction and Margaret L. Neily, ES, to the CF99–1, March 17, 1999. amendments of the children’s sleepwear Commission, ‘‘Children’s Sleepwear flammability standards. 57. Memorandum from Martha A. Kosh, Flammability Standards—Analysis of Public 45. Memorandum from James F. Hoebel, OS, to Sadye E. Dunn, Secretary, OS, Chief Engineer for Fire Hazards, to Terrance ‘‘Sleepwear Revocation,’’ list of additional Comments on the Proposed Revocation of the R. Karels, Project Manager, entitled comments on CF99–1, March 29, 1999. September 1996 and Subsequent ‘‘Children’s Sleepwear’’; October 10, 1995. 58. U.S. Consumer Product Safety Amendments,’’ June 3, 1999. 46. Memorandum from Warren J. Prunella, Commission Public Hearing on Proposed [FR Doc. 99–16322 Filed 6–25–99; 8:45 am] Associate Executive Director for Economic Revocation of Amendments to Children’s Analysis, to file concerning small business Sleepwear Standards, agenda with BILLING CODE 6355±01±P effects of proposed amendments to the presenters, April 22, 1999. children’s sleepwear flammability standards; 59. Memorandum from Marilyn Borsari, February 17, 1995. Office of Compliance to Margaret Neily,

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