[Code of Federal Regulations]
[Title 16, Volume 2]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 16CFR1610.40]

[Page 617-618]
 
                     TITLE 16--COMMERCIAL PRACTICES
 
             CHAPTER II--CONSUMER PRODUCT SAFETY COMMISSION
 
PART 1610_STANDARD FOR THE FLAMMABILITY OF CLOTHING TEXTILES--Table 
of Contents
 
                     Subpart B_Rules and Regulations
 
Sec.  1610.40  Use of alternate apparatus, procedures, or criteria for 
tests for guaranty purposes.

    (a) Section 8(a) of the Flammable Fabrics Act (FFA, 15 U.S.C. 
1197(a)) provides that no person shall be subject to criminal 
prosecution under section 7 of the FFA (15 U.S.C. 1196) for a violation 
of section 3 of the FFA (15 U.S.C. 1192) if that person establishes a 
guaranty received in good faith which meets all requirements set forth 
in section 8 the FFA. One of those requirements is that the guaranty 
must be based upon ``reasonable and representative tests'' in accordance 
with the applicable standard.
    (b) The Standard for the Flammability of Clothing Textiles (the 
Standard) prescribes apparatus and procedures for testing fabrics and 
garments subject to its provisions. See 16 CFR 1610.4. The Standard 
prescribes criteria for classifying the flammability of fabrics and 
garments subject to its provisions as ``Normal flammability, Class 1,'' 
``Intermediate flammability, Class 2,'' and ``rapid and intense burning, 
Class 3.'' See 16 CFR 1610.3. Sections 3 and 4 of the Flammable Fabrics 
Act, as enacted in 1953 and amended in 1954, prohibits the manufacture 
for sale, importation into the United States, or introduction in 
commerce of any fabric or article of wearing apparel subject to the 
Standard which exhibits ``rapid and intense burning'' when tested in 
accordance with the Standard. See 16 CFR part 1609.
    (c) The Commission recognizes that for purposes of supporting 
guaranties, ``reasonable and representative tests'' could be either the 
test in the Standard, or alternate tests which utilize apparatus or 
procedures other than those in the Standard. This Sec.  1610.40 sets 
forth conditions under which the Commission will allow use of alternate 
tests with apparatus or procedures other than those in the Standard to 
serve as the basis for guaranties.
    (d)(1) Persons and firms issuing guaranties that fabrics or garments 
subject to the Standard meet its requirements may base those guaranties 
on any alternate test utilizing apparatus or procedures other than those 
in the Standard, if such alternate test is as stringent as, or more 
stringent than, the test in the Standard. The Commission considers an 
alternate test to be ``as stringent as, or more stringent than'' the 
test in the Standard if, when testing identical specimens, the alternate 
test yields failing results as often as, or more often than, the test in 
the Standard. Any person using such an alternate test must have data or 
information to demonstrate that the alternate test is as stringent as, 
or more stringent than, the test in the Standard.
    (2) The data or information required by this paragraph (d) of this 
section to demonstrate equivalent or greater stringency of any alternate 
test using apparatus or procedures other than those in the Standard must 
be in the possession of the person or firm desiring to use such 
alternate test before the alternate test may be used to support 
guaranties of items subject to the Standard.
    (3) The data or information required by paragraph (d) of this 
section to demonstrate equivalent or greater stringency of any alternate 
test using apparatus or procedures other than those in the Standard must 
be retained for as long as that alternate test is used to support 
guaranties of items subject to the Standard, and for one year 
thereafter.
    (e) Specific approval from the Commission in advance of the use of 
any alternate test using apparatus or procedures other than those in the 
standard is not required. The Commission will not approve or disapprove 
any specific alternate test utilizing apparatus or procedures other than 
those in the Standard.
    (f) Use of any alternate test to support guaranties of items subject 
to the

[[Page 618]]

Standard without the information required by this section may result in 
violation of section 8(b)), of the FFA (15 U.S.C. 1197(b)), which 
prohibits the furnishing of a false guaranty.
    (g) The commission will test fabrics and garments subject to the 
Standard for compliance with the Standard using the apparatus and 
procedures set forth in the Standard. The Commission will consider any 
failing results from compliance testing as evidence that:
    (1) The manufacture for sale, importation into the United States, or 
introduction in commerce of the fabric or garment which yielded failing 
results was in violation of the Standard and of section 3 of the FFA; 
and
    (2) The person or firm using the alternate test as the basis for a 
guaranty has furnished a false guaranty, in violation of section 8(b) of 
the FFA.

(Reporting requirements contained in paragraph (d) were approved by 
Office of Management and Budget under control number 3041-0024)

[48 FR 21315, May 12, 1983]