[Federal Register: May 17, 2010 (Volume 75, Number 94)]
[Proposed Rules]
[Page 27497-27504]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17my10-31]
=======================================================================
-----------------------------------------------------------------------
CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1120
[Docket No. CPSC-2010-0043]
RIN 3041-AC79
Determination That Children's Upper Outerwear in Sizes 2T to 12
With Neck or Hood Drawstrings and Children's Upper Outerwear in Sizes
2T to 16 With Certain Waist or Bottom Drawstrings Are a Substantial
Product Hazard
AGENCY: Consumer Product Safety Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Consumer Product Safety Commission (``CPSC'' or
``Commission'') is proposing a rule to specify that children's upper
outerwear garments in sizes 2T to 12 or the equivalent that have neck
or hood drawstrings, and in sizes 2T to 16 or the equivalent that have
waist or bottom drawstrings that do not meet specified criteria, have
characteristics that constitute substantial product hazards. Items of
children's upper outerwear with these features have been involved in a
number of deaths and serious injuries from entanglement of the
drawstrings with items such as playground slides, cribs, and school
buses. The proposed rule would enhance understanding in the industry
about how the Commission views such garments and would facilitate the
process of obtaining the appropriate corrective action when such
garments are found in commerce.
DATES: Submit comments by August 2, 2010.
ADDRESSES: You may submit comments, identified by Docket No. CPSC-2010-
0043, by any of the following methods:
Electronic Submissions. Submit electronic comments to the
Federal eRulemaking Portal: http://
[[Page 27498]]
www.regulations.gov. Follow the instructions for submitting comments.
(To ensure timely processing of comments, the Commission is no longer
directly accepting comments submitted by electronic mail (e-mail). The
Commission encourages you to submit electronic comments by using the
Federal eRulemaking Portal, as described above.)
Written Submissions. Submit written submissions in the
following ways:
a. FAX: 301-504-0127.
b. Mail/Hand delivery/Courier (for paper, disk, or CD-ROM
submissions): Office of the Secretary, Consumer Product Safety
Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. All comments received, including
any personal information provided, may be posted without change to
http://www.regulations.gov. Accordingly, we recommend that you not
submit confidential business information, trade secret information, or
other sensitive information that you do not want to be available to the
public.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov and insert the
docket number, CPSC 2010-0043, into the ``Search'' box and follow the
prompts.
FOR FURTHER INFORMATION CONTACT: Technical information: Jonathan
Midgett, Division of Human Factors, Consumer Product Safety Commission,
4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7692,
e-mail jmidgett@cpsc.gov. Legal information: Harleigh Ewell, Office of
the General Counsel, Consumer Product Safety Commission, 4330 East West
Highway, Bethesda, MD 20814; telephone (301) 504-7683; e-mail
hewell@cpsc.gov.
SUPPLEMENTARY INFORMATION:
A. Background
1. The hazard. Drawstrings in children's upper outerwear can
present a hazard if they become entangled with other objects [Ref. 6].
(Documents supporting statements in this notice are identified by [Ref.
], where is the number of the reference document as
listed below in section O of this notice.) Drawstrings in the neck and
hood areas of children's upper outerwear present a strangulation hazard
when the drawstring becomes caught in objects such as playground
slides. Drawstrings in the waist or bottom areas of children's upper
outerwear can catch in the doors or other parts of a motor vehicle,
thereby presenting a ``dragging'' hazard when the driver of the vehicle
drives off without realizing that someone is attached to the vehicle.
The injury data associated with drawstrings is discussed below in
section D of this preamble.
2. Previous industry actions to address the hazard. In 1994, at the
urging of CPSC, a number of manufacturers and retailers agreed to
modify or eliminate drawstrings from hoods and necks of children's
clothing [Ref. 1]. In 1997, the American Society for Testing and
Materials (now ASTM International) addressed the hazards presented by
drawstrings on upper outerwear by creating a voluntary consensus
standard, ASTM F 1816-97, Standard Safety Specification for Drawstrings
on Children's Upper Outerwear, to prohibit drawstrings around the hood
and neck area of children's upper outerwear in sizes 2T to 12, and also
to limit the length of drawstrings around the waist and bottom in sizes
2T to 16 to 3 inches outside the drawstring channel when the garment is
expanded to its fullest width. For waist and bottom drawstrings in
sizes 2T to 16, toggles, knots, and other attachments at the free ends
of drawstrings were prohibited. Further, waist and bottom drawstrings
in sizes 2T to 16 that are one continuous string were required to be
bartacked, i.e., stitched through to prevent the drawstring from being
pulled through its channel. The ASTM standard is copyrighted, but can
be viewed as a read-only document, only during the comment period on
this proposal, at http://www.astm.org/cpsc.htm, by permission of ASTM.
The Commission's staff has estimated that the age range of children
who would be likely to wear garments in sizes 2T to 12 is from 18
months to 10 years [Ref. 4]. The age range of children who would be
likely to wear garments in sizes 2T to 16 is 18 months to 14 years.
3. Previous actions by the Commission to address the hazard. On
July 12, 1994, the Commission announced a cooperative effort with a
number of manufacturers and retailers that agreed to eliminate or
modify drawstrings on the hoods and necks of children's clothing [Ref.
1].
In February 1996, the Commission issued guidelines [Ref. 8] for
consumers, manufacturers, and retailers that incorporated the
requirements that became ASTM F 1816-97.
On May 12, 2006, the CPSC's Office of Compliance posted a letter
[Ref. 2], on CPSC's website, to the manufacturers, importers, and
retailers of children's upper outerwear, citing the fatalities and
urging them to comply with the industry standard, ASTM F 1816-97. The
letter explained that the CPSC staff considers children's upper
outerwear with drawstrings at the hood or neck area to be defective and
to present a substantial risk of injury under section 15(c) of the
Federal Hazardous Substances Act (FHSA), 15 U.S.C. 1274(c). Recalls of
noncomplying products that were toys or other articles intended for use
by children could be sought under that section. (At that time, section
30(d) of the Consumer Product Safety Act (CPSA), 15 U.S.C. 2079(d)
(2007) provided that a risk that could be regulated under the FHSA
could not be regulated under the CPSA unless the Commission, by rule,
found that it was in the public interest to regulate the risk under the
CPSA. Thus, at that time, a recall would be sought under the authority
of section 15 of the FHSA, rather than the similar recall authority
under section 15 of the CPSA, discussed below in section A.4 of this
preamble. Section 30(d) of the CPSA was repealed by the CPSIA, so that
now a recall of a consumer product that is a toy or other article
intended for use by children can be sought either under the CPSA,
without a finding by rule that it is in the public interest to do so,
or under the FHSA.)
The 2006 letter also indicated that the Commission would seek civil
penalties if a manufacturer, importer, distributor, or retailer
distributed noncomplying children's upper outerwear in commerce and
failed to report that fact to the Commission as required by section
15(b) of the CPSA, 15 U.S.C. 2064(b) (discussed below in section A.4 of
this preamble). From 2006 through 2009, the Commission's staff
participated in 78 recalls of noncomplying products with drawstrings
and obtained a number of civil penalties based on the failure of firms
to report the defective products to CPSC as required by section 15(b)
of the CPSA [Ref. 4].
4. Section 15 of the CPSA. Section 15 of the CPSA authorizes the
CPSC to order corrective actions regarding substantial product hazards.
Section 15(a)(2) of the CPSA defines ``substantial product hazard'' as
a product defect which (because of the pattern of defect, the number of
defective products distributed in commerce, the severity of the risk,
or otherwise) creates a substantial risk of injury to the public. The
term ``defect'' is discussed in 16 CFR 1115.4.
[[Page 27499]]
Section 15(b)(3) of the CPSA (15 U.S.C. 2064(b)(3)) requires
manufacturers, distributors, and retailers of a consumer product or
other product over which the Commission has jurisdiction under any act
enforced by the Commission (other than motor vehicle equipment as
defined in 49 U.S.C. 30102(a)(7)), and which is distributed in
commerce, to immediately inform the Commission if they obtain
information that reasonably supports the conclusion that the product
contains a defect which could create a substantial product hazard under
section 15(a)(2) of the CPSA. After giving interested persons an
opportunity for a hearing, the Commission may require manufacturers,
distributors, and retailers, if in the public interest, to: (1) give
notice of the defect to various persons; (2) repair the product; or (3)
refund the purchase price. 15 U.S.C. 2064(c) and (d).
Section 15(j) of the CPSA authorizes the Commission to issue rules
establishing that defined characteristics of a consumer product that
present a risk of injury shall be deemed to be a substantial product
hazard if: (1) The characteristics are readily observable; (2) the
characteristics have been addressed by voluntary standards; (3) such
standards have been effective in reducing the risk of injury; and (4)
there is substantial compliance with such standards. These requirements
are discussed separately in sections B through E of this preamble
below.
B. The Defined Characteristics
As explained above in section A.4 of this preamble, the
requirements of the ASTM F 1816-97 voluntary standard to reduce the
risk of strangulation or being dragged by a vehicle due to neck, hood,
waist, or bottom drawstrings define the characteristics that present
the substantial product hazard associated with garments subject to that
standard.
C. The Characteristics Are Readily Observable
In the case of drawstrings, all of the requirements of the ASTM
voluntary standard can be evaluated with simple physical manipulations
of the garment, simple measurements of portions of the garments, and
unimpeded visual observation. The Commission concludes that the product
characteristics defined by the voluntary standard are readily
observable. (The preceding is not intended to be a definition of
``readily observable,'' and more complicated or difficult actions to
determine the presence or absence of defined product characteristics
also may be consistent with ``readily observable.'' The Commission
intends to evaluate this issue on a case-by-case basis.)
D. The Voluntary Standard Has Been Successful in Reducing the Risk of
Injury
1. Hood and neck drawstring incidents. The CPSC staff examined
reports of fatalities and injuries for the age groups whose upper
outerwear is subject to the voluntary standard [Ref. 6]. CPSC staff is
aware of 56 reports of neck and hood drawstring entanglements between
January 1985 and September 2009. Eighteen (32 percent) of these
entanglements were fatal. The majority of the entanglements involved a
neck or hood drawstring becoming snagged on a slide. Also, in several
incidents, a neck or hood drawstring became entangled on parts of a
crib. Of the 38 nonfatal neck or hood drawstring incidents involving
children in the age range of 18 months to 10 years (the ages estimated
to be associated with sizes 2T to 12), 30 incidents resulted in an
injury. In the remaining eight incidents, the neck or hood drawstring
became snagged or entangled but no injury was reported. The year with
the highest number of reported fatalities (three) was 1994. The 3 years
with the highest number of reported incidents (including both fatal and
nonfatal incidents) were 1992 (11), 1993 (9), and 1994 (9). Slides were
associated with 10 of the fatalities, 26 of the injury incidents, and
all 8 of the no-injury incidents (jackets or sweatshirts snagged by a
hood or neck drawstring on playground slides prior to the child's
subsequent escape or rescue).
The specification for drawstrings on children's upper outerwear,
ASTM F 1816-97, was approved in June 1997 and published in August 1998.
CPSC staff is aware of 12 fatalities and 33 nonfatal incidents during
the 12 years (1985-1996) prior to the ASTM standard that involved
children aged 18 months to 10 years of age where the neck or hood
string of upper outerwear became entangled. On average, this resulted
in one reported fatality and about three reported nonfatal incidents a
year. In the 8 years for which reporting is complete(1999 through 2006)
after ASTM F 1816-97 was published, CPSC staff received reports of two
fatal and two nonfatal neck or hood drawstring incidents. (The years
1997 and 1998 are omitted from this comparison because that was the
transition period during which the ASTM standard was developed and
published.) On average, this is approximately one fatality every 4
years and about one nonfatal entanglement every 4 years. For the years
for which reporting is complete, the data show a reduction in the
annual average number of reported fatalities after the ASTM standard of
75 percent. The corresponding reduction in the annual average number of
reported non-fatal entrapments is 91 percent. It should be noted that
CPSC staff continues to receive incident reports for the years 2007
through 2009. CPSC staff is aware of three fatalities and no non-fatal
incidents since January 2007. When reporting for 2007-2009 is complete,
the percent reduction in the annual average number of reported
fatalities associated with neck/hood drawstrings will be at most 55
percent if no additional fatal incidents are reported.
2. Waist and bottom drawstring incidents. Between January 1985 and
September 2009, CPSC staff is aware of 27 entanglement incidents
associated with a waist or bottom drawstring on children's upper
outerwear [Ref. 6]. Of these 27 incidents, 8 (30 percent) were fatal,
11 (41 percent) resulted in injuries, and 8 (30 percent) involved snags
or entanglements that did not result in an injury. All eight fatalities
identified with waist and bottom drawstrings (seven involving a bus and
one involving a slide) occurred in the years 1991 through 1996. From
1991 to 1996, there were 19 waist and bottom drawstring incidents, of
which 13 involved buses (7 fatalities and 6 nonfatal incidents). CPSC
staff is not aware of any bus-related drawstring incidents after 1996.
There were seven wai