PART 1610—STANDARD FOR THE FLAMMABILITY OF CLOTHING TEXTILES Source: 73 FR 15640, Mar. 25, 2008, unless otherwise noted. Authority: 15 U.S.C. 1191-1204. Subpart A—The Standard § 1610.1 Purpose, scope and applicability. (a) Purpose. (b) Scope. (c) Specific exceptions. (2) Gloves, provided they are not more than 14 inches in length and are not affixed to or do not form an integral part of another garment; (3) Footwear, provided it does not consist of hosiery in whole or part and is not affixed to or does not form an integral part of another garment; (4) Interlining fabrics, when intended or sold for use as a layer between an outer shell and an inner lining in wearing apparel. (d) Specific exemptions. (1) Plain surface fabrics, regardless of fiber content, weighing 2.6 ounces per square yard or more; and (2) All fabrics, both plain surface and raised-fiber surface textiles, regardless of weight, made entirely from any of the following fibers or entirely from combination of the following fibers: acrylic, modacrylic, nylon, olefin, polyester, wool. (e) Applicability. § 1610.2 Definitions. In addition to the definitions given in Section 2 of the Flammable Fabrics Act as amended (15 U.S.C. 1191), the following definitions apply for this part 1610. (a) Base burn (b) Burn time (c) Dry cleaning (d) Film (e) Flammability (f) Flame application (g) Ignition (h) Interlining (i) Laundering (j) Long dimension (k) Plain surface textile (l) Raised surface textile fabric (m) Refurbishing (n) Sample (o) Specimen (p) Stop thread supply (q) Surface flash (r) Textile fabric [73 FR 15640, Mar. 25, 2008, as amended at 88 FR 73230, Oct. 25, 2023] § 1610.3 Summary of test method. The Standard provides methods of testing the flammability of textiles from or intended to be used for apparel; establishes three classes of flammability; sets forth the requirements for classifying textiles; and prohibits the use of single or multi-layer textile fabrics that have burning characteristics that make them unsuitable for apparel. All textiles shall be tested before and after refurbishing according to § 1610.6. Each specimen cut from the textile shall be inserted in a frame, brushed if it has a raised-fiber surface, and held in a special apparatus at an angle of 45°. A standardized flame shall be applied to the surface near the lower end of the specimen for 1 second, and the time required for the flame to proceed up the fabric a distance of 127 mm (5 in) shall be recorded. A notation shall be made as to whether the base of a raised-surface textile fabric ignites or fuses. § 1610.4 Requirements for classifying textiles. (a) Class 1, Normal Flammability. (1) Plain surface textile fabric. (2) Raised surface textile fabric. (b) Class 2, Intermediate flammability. (1) Plain surface textile fabric. (2) Raised surface textile fabric. (c) Class 3, Rapid and intense burning. (1) Plain surface textile fabric. (2) Raised surface textile fabric. Table 1 to § 1610.4—Summary of Test Criteria for Specimen Classification [See § 1610.7] Class Plain surface textile fabric Raised surface textile fabric 1 Burn time is 3.5 seconds or more. ACCEPTABLE (3.5 seconds is a pass) (1) Burn time is greater than 7.0 seconds; or (2) Burn time is less than or equal to 7.0 seconds with no SFBB test result code. Exhibits rapid surface flash only. ACCEPTABLE—Normal Flammability. 2 Class 2 is not applicable to plain surface textile fabrics Burn time is 4.0 to 7.0 seconds (inclusive) with base burn (SFBB). ACCEPTABLE—Intermediate Flammability. 3 Burn time is less than 3.5 seconds. NOT ACCEPTABLE Burn time is less than 4.0 seconds with base burn (SFBB). NOT ACCEPTABLE—Rapid and Intense Burning. Note: [73 FR 15640, Mar. 25, 2008, as amended at 88 FR 73230, Oct. 25, 2023] § 1610.5 Test apparatus and materials. (a) Flammability apparatus. (1) Test chamber Test chamber structure. (ii) Specimen rack. (iii) Specimen holder. (iv) Indicator finger. (v) Ignition mechanism. i.e. (vi) Draft ventilator strip. (vii) Stop weight. (viii) Door. i.e. (ix) Hood. (2) Stop thread and thread guides Stop thread. (ii) Stop thread supply. (iii) Thread Guides. (iv) Stop weight thread guide. (3) Supply for test flame. (ii) The fuel-tank control valve shall consist of a sensitive control device for regulating the fuel supply at the tank. (iii) The flow control device, such as a manometer or flow meter, shall be sufficient to maintain a consistent flame length of 16 mm ( 5/8 (4) Timing Device. i.e., (b) Specimen preparation equipment and materials Laboratory drying oven. (2) Desiccator. (3) Desiccant. (4) Automatic washing machine. (5) Automatic tumble dryer. (6) Commercial dry cleaning machine. (7) Dry cleaning solvent. (8) Dry cleaning detergent. (9) Laundering detergent. (10) Brushing device. [73 FR 15640, Mar. 25, 2008, as amended at 73 FR 62187, Oct. 20, 2008; 88 FR 73230, Oct. 25, 2023] § 1610.6 Test procedure. The test procedure is divided into two steps. Step 1 is testing in the original state; Step 2 is testing after the fabric has been refurbished according to paragraph (b)(1) of this section. (a) Step 1—Testing in the original state. (i) Flocked fabrics. (ii) Cut velvet fabrics. (iii) Metallic thread fabrics. (iv) Embroidery. (v) Burn-out patterns. (vi) Narrow fabrics and loose fibrous materials. i.e. (2) Plain surface textile fabrics: (i) Preliminary trials. (ii) Identify and cut test specimens. (iii) Mount specimens. (iv) Condition specimens. (v) Flammability test. (3) Raised surface textile fabrics Preliminary trials. (ii) Identify and cut test specimens. (iii) Mount specimens. i.e. (iv) Brush specimens. (v) Condition specimens. (vi) Conduct flammability test. (b) Step 2—Refurbishing and testing after refurbishing. (i) Dry cleaning procedure. ( 1 (i) (ii) (iii) (iv) (v) (140-150 °F). (vi) (vii) ( 2 (i) (ii) (iii) (iv) (v) (140-150 °F). (vi) (vii) Samples shall be dry cleaned in a load that is 80% of the machine's capacity. (B) If necessary, ballast consisting of clean textile pieces or garments, white or light in color and consisting of approximately 80% wool fabric pieces and 20% cotton fabric pieces, shall be used. (ii) Laundering procedure. (iii) AATCC LP1-2021, Laboratory Procedure for Home Laundering: Machine Washing, 2021, is incorporated by reference. The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. A read-only copy of the standard is available for viewing on the AATCC website. You may obtain a copy from the American Association of Textile Chemists and Colorists, P.O. Box 12215, Research Triangle Park, North Carolina 27709; telephone (919) 549-8141; www.aatcc.org. [email protected], [email protected], www.archives.gov/federal-register/cfr/ibr-locations.html. (2) Testing plain surface textile fabrics after refurbishing. (3) Testing raised fiber surface textile fabrics after refurbishing. (c) Procedure for testing flammability. 5/8 (2) Remove one mounted specimen from the desiccator at a time and place it in position on the specimen rack in the chamber of the apparatus. Thick fabrics may require adjustment of the specimen rack so that the tip of the indicator finger just touches the surface of the specimen. (3) Adjust the position of the specimen rack of the flammability test chamber so that the tip of the indicator finger just touches the face of the mounted specimen. (4) String the stop thread through the guides in the upper plate of the specimen holder across the top of the specimen, and through any other thread guide(s) of the chamber. Hook the stop weight in place close to and just below the stop weight thread guide. Set the timing mechanism to zero. Close the door of the flammability test chamber. (5) Begin the test within 45 seconds of the time the specimen was removed from the desiccator. Activate the trigger device to impinge the test flame. The trigger device controls the impingement of the test flame onto the specimen and starts the timing device. The timing is automatic and stops when the weight is released by the severing of the stop thread. (6) At the end of each test, turn on the hood fan to exhaust any fumes or smoke produced during the test. (7) Record the burn time (reading of the timer) for each specimen, along with visual observation using the test result codes given in § 1610.8. If there is no burn time, record the visual observation using the test result codes. Please note for raised-fiber surface textile fabrics, specimens should be allowed to continue burning, even though a burn rate is measured, to determine if the base fabric will fuse. (8) After exhausting all fumes and smoke produced during the test, turn off the fan before testing the next specimen. [73 FR 15640, Mar. 25, 2008, as amended at 73 FR 62187, Oct. 20, 2008; 88 FR 73231, Oct. 25, 2023] § 1610.7 Test sequence and classification criteria. (a) Preliminary and final classifications. (b) Test sequence and classification criteria. (i) Conduct preliminary tests in accordance with § 1610.6(a)(2)(i) to determine the fastest burning direction of the fabric. (ii) Prepare and test five specimens from the fastest burning direction. The burn times determine whether to assign the preliminary classification and proceed to § 1610.6(b) or to test five additional specimens. (iii) Assign the preliminary classification of Class 1, Normal Flammability, and proceed to § 1610.6(b) when: (A) There are no burn times; or (B) There is only one burn time, and it is equal to or greater than 3.5 seconds; or (C) The average burn time of two or more specimens is equal to or greater than 3.5 seconds. (iv) Test five additional specimens when there is either only one burn time, and it is less than 3.5 seconds; or there is an average burn time of less than 3.5 seconds. Test these five additional specimens from the fastest burning direction as previously determined by the preliminary specimens. The burn times for the 10 specimens determine whether to: (A) Stop testing and assign the final classification as Class 3, Rapid and Intense Burning, only when there are two or more burn times with an average burn time of less than 3.5 seconds; or (B) Assign the preliminary classification of Class 1, Normal Flammability, and proceed to § 1610.6(b) when there are two or more burn times with an average burn time of 3.5 seconds or greater. (v) If there is only one burn time out of the 10 test specimens, the test is inconclusive. The fabric cannot be classified. (2) Step 2, Plain Surface Textile Fabrics after refurbishing in accordance with § 1610.6(b)(1). (i) Conduct preliminary tests in accordance with § 1610.6(a)(2)(i) to determine the fastest burning direction of the fabric. (ii) Prepare and test five specimens from the fastest burning direction. The burn times determine whether to stop testing and assign the preliminary classification or to test five additional specimens. (iii) Stop testing and assign the preliminary classification of Class 1, Normal Flammability, when: (A) There are no burn times; or (B) There is only one burn time, and it is equal to or greater than 3.5 seconds; or (C) The average burn time of two or more specimens is equal to or greater than 3.5 seconds. (iv) Test five additional specimens when there is only one burn time, and it is less than 3.5 seconds; or there is an average burn time less than 3.5 seconds. Test five additional specimens from the fastest burning direction as previously determined by the preliminary specimens. The burn times for the 10 specimens determine the preliminary classification when: (A) There are two or more burn times with an average burn time of 3.5 seconds or greater. The preliminary classification is Class 1, Normal Flammability; or (B) There are two or more burn times with an average burn time of less than 3.5 seconds. The preliminary and final classification is Class 3, Rapid and Intense Burning; or (v) If there is only one burn time out of the 10 specimens, the test results are inconclusive. The fabric cannot be classified. (3) Step 1, Raised Surface Textile Fabric in the original state. (i) Determine the area to be most flammable per § 1610.6(a)(3)(i). (ii) Prepare and test five specimens from the most flammable area. The burn times and visual observations determine whether to assign a preliminary classification and proceed to § 1610.6(b) or to test five additional specimens. (iii) Assign the preliminary classification and proceed to § 1610.6(b) when: (A) There are no burn times. The preliminary classification is Class 1, Normal Flammability; or (B) There is only one burn time and it is less than 4.0 seconds without an SFBB test result code, or it is 4.0 seconds or greater with or without am SFBB test result code. The preliminary classification is Class 1, Normal Flammability; or (C) There are no base burns (SFBB) regardless of the burn time(s). The preliminary classification is Class 1, Normal Flammability; or (D) There are two or more burn times with an average burn time of 0.0 to 7.0 seconds with a surface flash only. The preliminary classification is Class 1, Normal Flammability; or (E) There are two or more burn times with an average burn time greater than 7.0 seconds with any number of base burns (SFBB). The preliminary classification is Class 1, Normal Flammability; or (F) There are two or more burn times with an average burn time of 4.0 through 7.0 seconds (both inclusive) with no more than one base burn (SFBB). The preliminary classification is Class 1, Normal Flammability; or (G) There are two or more burn times with an average burn time less than 4.0 seconds with no more than one base burn (SFBB). The preliminary classification is Class 1, Normal Flammability; or (H) There are two or more burn times with an average burn time of 4.0 through 7.0 seconds (both inclusive) with two or more base burns (SFBB). The preliminary classification is Class 2, Intermediate Flammability. (iv) Test five additional specimens when the tests of the initial five specimens result in either of the following: There is only one burn time and it is less than 4.0 seconds with a base burn (SFBB); or the average of two or more burn times is less than 4.0 seconds with two or more base burns (SFBB). Test these five additional specimens from the most flammable area. The burn times and visual observations for the 10 specimens will determine whether to: (A) Stop testing and assign the final classification only if the average burn time for the 10 specimens is less than 4.0 seconds with three or more base burns (SFBB). The final classification is Class 3, Rapid and Intense Burning; or (B) Assign the preliminary classification and continue on to § 1610.6(b) when: ( 1 ( 2 ( 3 ( 4 (v) If there is only one burn time out of the 10 specimens, the test is inconclusive. The fabric cannot be classified. (4) Step 2, Raised Surface Textile Fabric After Refurbishing in accordance with § 1610.6(b). (i) Determine the area to be most flammable in accordance with § 1610.6(a)(3)(i). (ii) Prepare and test five specimens from the most flammable area. Burn times and visual observations determine whether to stop testing and determine the preliminary classification or to test five additional specimens. (iii) Stop testing and assign the preliminary classification when: (A) There are no burn times. The preliminary classification is Class 1, Normal Flammability; or (B) There is only one burn time, and it is less than 4.0 seconds without an SFBB test result code; or it is 4.0 seconds or greater with or without an SFBB test result code. The preliminary classification is Class 1, Normal Flammability; or (C) There are no base burns (SFBB) regardless of the burn time(s). The preliminary classification is Class 1, Normal Flammability; or (D) There are two or more burn times with an average burn time of 0.0 to 7.0 seconds with a surface flash only. The preliminary classification is Class 1, Normal Flammability; or (E) There are two or more burn times with an average burn time greater than 7.0 seconds with any number of base burns (SFBB). The preliminary classification is Class 1, Normal Flammability; or (F) There are two or more burn times with an average burn time of 4.0 to 7.0 seconds (both inclusive) with no more than one base burn (SFBB). The preliminary classification is Class 1, Normal Flammability; or (G) There are two or more burn times with an average burn time less than 4.0 seconds with no more than one base burn (SFBB). The preliminary classification is Class 1, Normal Flammability; or (H) There are two or more burn times with an average burn time of 4.0 to 7.0 seconds (both inclusive) with two or more base burns (SFBB). The preliminary classification is Class 2, Intermediate Flammability. (iv) Test five additional specimens when the tests of the initial five specimens result in either of the following: There is only one burn time, and it is less than 4.0 seconds with a base burn (SFBB); or the average of two or more burn times is less than 4.0 seconds with two or more base burns (SFBB). (v) If required, test five additional specimens from the most flammable area. The burn times and visual observations for the 10 specimens determine the preliminary classification when: (A) The average burn time is less than 4.0 seconds with no more than two base burns (SFBB). The preliminary classification is Class 1, Normal Flammability; or (B) The average burn time is less than 4.0 seconds with three or more base burns (SFBB). The preliminary and final classification is Class 3, Rapid and Intense Burning; or (C) The average burn time is greater than 7.0 seconds. The preliminary classification is Class 1, Normal Flammability; or (D) The average burn time is 4.0 to 7.0 seconds (both inclusive), with no more than two base burns (SFBB). The preliminary classification is Class 1, Normal Flammability; or (E) The average burn time is 4.0 to 7.0 seconds (both inclusive), with three or more base burns (SFBB). The preliminary classification is Class 2, Intermediate Flammability; or (vi) If there is only one burn time out of the 10 specimens, the test is inconclusive. The fabric cannot be classified. [73 FR 15640, Mar. 25, 2008, as amended at 88 FR 73231, Oct. 25, 2023] § 1610.8 Reporting results. (a) The reported result shall be the classification before or after refurbishing, whichever is the more severe; and based on this result, the textile shall be placed in the proper final classification as described in § 1610.4. (b) Test result codes. (1) For Plain Surface Textile Fabrics: (i) DNI Did not ignite. (ii) IBE Ignited, but extinguished. (iii) _._sec. Actual burn time measured and recorded by the timing device. (2) For Raised Surface Textile Fabrics: (i) _._SFBB Time in seconds, surface flash base burn starting at places other than the point of impingement as a result of surface flash. (ii) _._SFBB poi Time in seconds, surface flash base burn starting at the point of impingement. (iii) _._SFBB poi* Time in seconds, surface flash base burn possibly starting at the point of impingement. The asterisk is accompanied by the following statement: “Unable to make absolute determination as to source of base burns.” This statement is added to the result of any specimen if there is a question as to origin of the base burn. (iv) _._SF only Time in seconds, surface flash only. No damage to the base fabric. (v) SF poi Surface flash, at the point of impingement only (equivalent to “did not ignite” for plain surfaces). (vi) SF uc Surface flash, under the stop thread, but does not break the stop thread. (vii) SF pw Surface flash, part way. No time shown because the surface flash did not reach the stop thread. [73 FR 15640, Mar. 25, 2008, as amended at 88 FR 73233, Oct. 25, 2023] Subpart B—Rules and Regulations § 1610.31 Definitions. In addition to the definitions provided in section 2 of the Flammable Fabrics Act as amended (15 U.S.C. 1191), and in § 1610.2 of the Standard, the following definitions apply for this subpart. (a) Act (b) Rule, rules, regulations, and rules and regulations, (c) United States (d) Marketing or handling (e) Test (f) Finish type (g) Uncovered or exposed part (1) Linings, with exposed areas, such as full front zippered jackets; (2) Sweatshirts with exposed raised fiber surface inside and capable of being worn napped side out; (3) Unlined hoods; (4) Rolled cuffs. (h) Coated fabrics § 1610.32 General requirements. No article of wearing apparel or fabric subject to the Act and regulations shall be marketed or handled if such article or fabric, when tested according to the procedures prescribed in section 4(a) of the Act (16 CFR 1609), is so highly flammable as to be dangerous when worn by individuals. § 1610.33 Test procedures for textile fabrics and film. (a)(1) All textile fabrics (except those with a nitro-cellulose fiber, finish or coating) intended or sold for use in wearing apparel, and all such fabrics contained in articles of wearing apparel, shall be subject to the requirements of the Act, and shall be deemed to be so highly flammable as to be dangerous when worn by individuals if such fabrics or any uncovered or exposed part of such articles of wearing apparel exhibits rapid and intense burning when tested under the conditions and in the manner prescribed in subpart A of this part 1610. (2) Notwithstanding the provisions of paragraph (a)(1) of this section, coated fabrics, except those with a nitro-cellulose coating, may be tested under the procedures outlined in part 1611, Standard for the Flammability of Vinyl Plastic Film, and if such coated fabrics do not exhibit a rate of burning in excess of that specified in § 1611.3 they shall not be deemed to be so highly flammable as to be dangerous when worn by individuals. (b) All film, and textile fabrics with a nitro-cellulose fiber, finish or coating intended or sold for use in wearing apparel, and all film and such textile fabrics referred to in this rule which are contained in articles of wearing apparel, shall be subject to the requirements of the Act, and shall be deemed to be so highly flammable as to be dangerous when worn by individuals if such film or such textile fabrics or any uncovered or exposed part of such articles of wearing apparel exhibit a rate of burning in excess of that specified in part 1611, Standard for the Flammability of Vinyl Plastic Film. § 1610.34 Only uncovered or exposed parts of wearing apparel to be tested. (a) In determining whether an article of wearing apparel is so highly flammable as to be dangerous when worn by individuals, only the uncovered or exposed part of such article of wearing apparel shall be tested according to the applicable procedures set forth in § 1610.6. (b) If the outer layer of plastic film or plastic-coated fabric of a multilayer fabric separates readily from the other layers, the outer layer shall be tested under part 1611—Standard for the Flammability of Vinyl Plastic Film. If the outer layer adheres to all or a portion of one or more layers of the underlaying fabric, the multi-layered fabric may be tested under either part 1610—Standard for the Flammability of Clothing Textiles or part 1611. However, if the conditioning procedures required by § 1610.6(a)(2)(iv) and § 1610.6(a)(3)(v) would damage or alter the physical characteristics of the film or coating, the uncovered or exposed layer shall be tested in accordance with part 1611. (c) Plastic film or plastic-coated fabric used, or intended for use as the outer layer of disposable diapers is exempt from the requirements of the Standard, provided that a sample taken from a full thickness of the assembled article passes the test in the Standard (part 1610 or part 1611) otherwise applicable to the outer fabric or film when the flame is applied to the exposed or uncovered surface. See §§ 1610.36(f) and 1611.36(f). § 1610.35 Procedures for testing special types of textile fabrics under the standard. (a) Fabric not customarily washed or dry cleaned. (2) Section 1610.3, which requires that all textiles shall be refurbished before testing, shall not apply to disposable fabrics and garments. Additionally, such disposable fabrics and garments shall not be subject to the labeling requirements set forth in paragraph (a)(1) of this section. (b) A coated fabric need not, upon test under the procedures outlined in subpart A of part 1610, be dry cleaned as set forth in § 1610.6(b)(1)(i). (c) In determining whether a textile fabric having a raised-fiber surface, which surface is to be used in the covered or unexposed parts of articles of wearing apparel, is so highly flammable as to be dangerous when worn by individuals, only the opposite surface or surface intended to be exposed need be tested under the applicable procedures set forth in § 1610.6, providing an invoice or other paper covering the marketing or handling of such fabric is given which clearly designates that the raised-fiber surface is to be used only in the covered or unexposed parts of articles of wearing apparel. § 1610.36 Application of Act to particular types of products. (a) Interlinings. Provided And provided further (b) Hats, gloves, and footwear. Provided And provided further (c) Veils and hats. (2) Where hats are composed entirely of ornamental millinery veils or veilings such hats will not be considered as subject to the Act if the veils or veilings from which they are manufactured were not more than nine (9) inches in width and do not extend more than nine (9) inches from the tip of the crown of the completed hat. (d) Handkerchiefs. (2) Handkerchiefs or other articles affixed to, incorporated in, or sold as a part of articles of wearing apparel as decoration, trimming, or for any other purpose, are considered an integral part of such articles of wearing apparel, and the articles of wearing apparel and all parts thereof are subject to the provisions of the Act. Handkerchiefs or other articles intended or sold to be affixed to, incorporated in or sold as a part of articles of wearing apparel as aforesaid constitute “fabric” as that term is defined in section 2(e) of the Act and are subject to the provisions of the Act, such handkerchiefs or other articles constitute textile fabrics as the term “textile fabric” is defined in § 1610.2(r). (3) If, because of construction, design, color, type of fabric, or any other factor, a piece of cloth of a finished type or any other product of a finished type appears to be likely to be used as a covering for the head, neck, face, shoulders, or any part thereof, or otherwise appears likely to be used as an article of clothing, garment, such product is not a handkerchief and constitutes an article of wearing apparel as defined in and subject to the provisions of the Act, irrespective of its size, or its description or designation as a handkerchief or any other term. (e) Raised-fiber surface wearing apparel. (f) Multilayer fabric and wearing apparel with a film or coating on the uncovered or exposed surface. § 1610.37 Reasonable and representative tests to support guaranties. (a) Purpose. (b) Statutory provisions. (2) Section 8 of the Act provides for two types of guaranties: (i) An initial guaranty based on “reasonable and representative tests” made in accordance with the applicable standard issued under the Act; and (ii) A guaranty based on a previous guaranty, received in good faith, to the effect that reasonable and representative tests show conformance with the applicable standard. (c) Requirements. (2) The term program of reasonable and representative tests as used in this § 1610.37 means at least one test with results demonstrating conformance with the Standard for the product, fabric or related material which is the subject of an initial guaranty. The program of reasonable and representative tests required by this § 1610.37 may include tests performed before the effective date of this section, and may include tests performed by persons or firms outside of the territories of the United States or other than the one issuing the initial guaranty. The number of tests and the frequency of testing shall be left to the discretion of the person or firm issuing the initial guaranty. (3) In the case of an initial guaranty of a fabric or related material, a program of reasonable and representative tests may consist of one or more tests of the particular fabric or related material which is the subject of the guaranty, or of a fabric or related material of the same “class” of fabrics or related materials as the one which is the subject of the guaranty. For purposes of this § 1610.37, the term class means a category of fabrics or related materials having general constructional or finished characteristics, sometimes in association with a particular fiber, and covered by a class or type description generally recognized in the trade. § 1610.38 Maintenance of records by those furnishing guaranties. (a) Any person or firm issuing an initial guaranty of a product, fabric, or related material which is subject to the Standard for the Flammability of Clothing Textiles (the Standard, 16 CFR part 1610) shall keep and maintain a record of the test or tests relied upon to support that guaranty. The records to be maintained shall show: (1) The style or range number, fiber composition, construction and finish type of each textile fabric or related material covered by an initial guaranty; or the identification, fiber composition, construction and finish type of each textile fabric (including those with a nitrocellulose fiber, finish or coating), and of each related material, used or contained in a product of wearing apparel covered by an initial guaranty. (2) The results of the actual test or tests made of the textile fabric or related material covered by an initial guaranty; or of any fabric or related material used in the product of wearing apparel covered by an initial guaranty. (3) When the person or firm issuing an initial guaranty has conducted the test or tests relied upon to support that guaranty, that person or firm shall also include with the information required by paragraphs (a) (1) and (2) of this section, a sample of each fabric or related material which has been tested. (b) Persons furnishing guaranties based upon class tests shall maintain records showing: (1) Identification of the class test. (2) Fiber composition, construction and finish type of the fabrics, or the fabrics used or contained in articles of wearing apparel so guaranteed. (3) A swatch of each class of fabrics guaranteed. (c) Persons furnishing guaranties based upon guaranties received by them shall maintain records showing the guaranty received and identification of the fabrics or fabrics contained in articles of wearing apparel guaranteed in turn by them. (d) The records referred to in this section shall be preserved for a period of 3 years from the date the tests were performed, or in the case of paragraph (c) of this section from the date the guaranties were furnished. (e) Any person furnishing a guaranty under section 8(a) of the Act who neglects or refuses to maintain and preserve the records prescribed in this section shall be deemed to have furnished a false guaranty under the provisions of section 8(b) of the Act. § 1610.39 Shipments under section 11(c) of the Act. (a) The invoice or other paper relating to the shipment or delivery for shipment in commerce of articles of wearing apparel or textile fabrics for the purpose of finishing or processing to render them not so highly flammable as to be dangerous when worn by individuals, shall contain a statement disclosing such purpose. (b) An article of wearing apparel or textile fabric shall not be deemed to fall within the provisions of section 11(c) of the Act as being shipped or delivered for shipment in commerce for the purpose of finishing or processing to render such article of wearing apparel or textile fabric not so highly flammable under section 4 of the Act, as to be dangerous when worn by individuals, unless the shipment or delivery for shipment in commerce of such article of wearing apparel or textile fabric is made directly to the person engaged in the business of processing or finishing textile products for the prearranged purpose of having such article of apparel or textile fabric processed or finished to render it not so highly flammable under section 4 of the Act, as to be dangerous when worn by individuals, and any person shipping or delivering for shipment the article of wearing apparel or fabric in commerce for such purpose maintains records which establish that the textile fabric or article of wearing apparel has been shipped for appropriate flammability treatment, and that such treatment has been completed, as well as records to show the disposition of such textile fabric or article of wearing apparel subsequent to the completion of such treatment. (c) The importation of textile fabrics or articles of wearing apparel may be considered as incidental to a transaction involving shipment or delivery for shipment for the purpose of rendering such textile fabrics or articles of wearing apparel not so highly flammable under the provisions of section 4 of the Act, as to be dangerous when worn by individuals, if: (1) The importer maintains records which establish that: (i) The imported textile fabrics or articles of wearing apparel have been shipped for appropriate flammability treatment, and (ii) Such treatment has been completed, as well as records to show the disposition of such textile fabrics or articles of wearing apparel subsequent to the completion of such treatment. (2) The importer, at the time of importation, executes and furnishes to the U.S. Customs and Border Protection an affidavit stating: These fabrics (or articles of wearing apparel) are dangerously flammable under the provisions of section 4 of the Act, and will not be sold or used in their present condition but will be processed or finished by the undersigned or by a duly authorized agent so as to render them not so highly flammable under the provisions of section 4 of the Flammable Fabrics Act, as to be dangerously flammable when worn by individuals. The importer agrees to maintain the records required by 16 CFR 1610.39(c)(1). (3) The importer, if requested to do so by the U.S. Customs and Border Protection, furnishes an adequate specific-performance bond conditioned upon the complete discharge of the obligations assumed in paragraphs (c)(1) and (2) of this section. (d) The purpose of section 11(c) of the Act is only to permit articles of wearing apparel or textile fabrics which are dangerously flammable to be shipped or delivered for shipment in commerce for the purpose of treatment or processing to render them not dangerously flammable. Section 11(c)of the Act does not in any other respect limit the force and effect of sections 3, 6, 7, and 9 of the Act. In particular, section 11(c) of the Act does not authorize the sale or offering for sale of any article of wearing apparel or textile fabric which is in fact dangerously flammable at the time of sale or offering for sale, even though the seller intends to ship the article for treatment prior to delivery to the purchaser or has already done so. Moreover, under section 3 of the Act a person is liable for a subsequent sale or offering for sale if, despite the purported completion of treatment to render it not dangerously flammable, the article in fact remains dangerously flammable. § 1610.40 Use of alternate apparatus, procedures, or criteria for tests for guaranty purposes. (a) Section 8(a) of the Act provides that no person shall be subject to criminal prosecution under section 7 of the Act (15 U.S.C. 1196) for a violation of section 3 of the Act (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 Act. One of those requirements is that the guaranty must be based upon “reasonable and representative tests” in accordance with the applicable standard. (b) Subpart A of this part 1610 prescribes apparatus and procedures for testing fabrics and garments subject to its provisions. See §§ 1610.5 & 1610.6. Subpart A 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 § 1610.4. Sections 3 and 4 of the Act prohibit 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 subpart A of this part, or alternate tests which utilize apparatus or procedures other than those in subpart A of this part. This § 1610.40 sets forth conditions under which the Commission will allow use of alternate tests with apparatus or procedures other than those in subpart A of this part 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 subpart A of this part, if such alternate test is as stringent as, or more stringent than, the test in subpart A of this part. The Commission considers an alternate test to be “as stringent as, or more stringent than” the test in subpart A of this part if, when testing identical specimens, the alternate test yields failing results as often as, or more often than, the test in subpart A of this part. 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 subpart A of this part. (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 subpart A of this part 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 subpart A of this part 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 Subpart A is not required. The Commission will not approve or disapprove any specific alternate test utilizing apparatus or procedures other than those in subpart A of this part. (f) Use of any alternate test to support guaranties of items subject to the Standard without the information required by this section may result in violation of section 8(b), of the Act (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 subpart A of this part. 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 Act; 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 Act. (Reporting requirements contained in paragraph (d) were approved by Office of Management and Budget under control number 3041-0024.) Subpart C—Interpretations and Policies § 1610.61 Reasonable and representative testing to assure compliance with the standard for the clothing textiles. (a) Background. (2) The Standard applies both to fabrics and finished garments. The Standard provides methods of testing the flammability of textiles, and sets forth the requirements that textiles must meet to be classified into one of three classes of flammability (classes 1, 2 and 3). § 1610.4. Class 1 textiles, those that exhibit normal flammability, are acceptable for use in clothing. § 1610.4(a)(1) & (2). Class 2 textiles, applicable only to raised-fiber surfaces, are considered to be of intermediate flammability, but may be used in clothing. § 1610.4(b)(1) & (2). Finally, Class 3 textiles, those that exhibit rapid and intense burning, are dangerously flammable and may not be used in clothing. § 1610.4(c)(1) & (2). The manufacture for sale, offering for sale, importation into the U.S., and introduction or delivery for introduction of Class 3 articles of wearing apparel are among the acts prohibited by section 3(a) of the Act, 15 U.S.C. 1192(a). (3) CPSC currently uses retail surveillance, attends appropriate trade shows, follows up on reports of noncompliance and previous violations, and works with U.S. Customs and Border Protection in an effort to find textiles that violate CPSC's standards. The Commission has a number of enforcement options to address prohibited acts. These include bringing seizure actions in federal district court against violative textiles, seeking an order through an administrative proceeding that a firm cease and desist from selling violative garments, pursuing criminal penalties, or seeking the imposition of civil penalties for “knowing” violations of the Act. Of particular relevance to the latter two remedies is whether reasonable and representative tests were performed demonstrating that a textile or garment meets the flammability standards for general wearing apparel. Persons who willfully violate flammability standards are subject to criminal penalties. (4) Section 8(a) of the Act, 15 U.S.C. 1197(a), exempts a firm from the imposition of criminal penalties if the firm establishes that a guaranty was received in good faith signed by and containing the name and address of the person who manufactured the guarantied wearing apparel or textiles or from whom the apparel or textiles were received. A guaranty issued by a person who is not a resident of the United States may not be relied upon as a bar to prosecution. 16 CFR 1608.4. The guaranty must be based on the exempted types of fabrics or on reasonable and representative tests showing that the fabric covered by the guaranty or used in the wearing apparel covered by the guaranty is not so highly flammable as to be dangerous when worn by individuals, i.e., is not a Class 3 material. (The person proffering a guaranty to the Commission must also not, by further processing, have affected the flammability of the fabric, related material or product covered by the guaranty that was received.) Under § 1610.37, a person, to issue a guaranty, should first evaluate the type of fabric to determine if it meets testing exemptions in accordance with § 1610.1(d). (Some textiles never exhibit unusual burning characteristics and need not be tested.) § 1610.1(d). Such textiles include plain surface fabrics, regardless of fiber content, weighing 2.6 oz. or more per sq. yd., and plain and raised surface fabrics made of acrylic, modacrylic, nylon, olefin, polyester, wool, or any combination of these fibers, regardless of weight.) If no exemptions apply, the person issuing the guaranty must devise and implement a program of reasonable and representative tests to support the guaranty. The number of tests and frequency of testing is left to the discretion of that person, but at least one test is required. (5) In determining whether a firm has committed a “knowing” violation of a flammability standard that warrants imposition of a civil penalty, the CPSC considers whether the firm had actual knowledge that its products violated the flammability requirements. The CPSC also considers whether the firm should be presumed to have the knowledge that would be possessed by a reasonable person acting in the circumstances, including knowledge that would have been obtainable upon the exercise of due care to ascertain the truth of representations. 15 U.S.C. 1194(e). The existence of results of flammability testing based on a reasonable and representative program and, in the case of tests performed by another entity (such as a guarantor), the steps, if any, that the firm took to verify the existence and reliability of such tests, bear directly on whether the firm acted reasonably in the circumstances. (b) Applicability. (2) The violations and resulting recalls and civil penalties demonstrate the critical necessity for manufacturers, distributors, importers, and retailers to evaluate, prior to sale, the flammability of garments made from the materials described above, or to seek appropriate guaranties that assure that the garments comply. Because of the likelihood of variable flammability in the small group of textiles identified above, one test is insufficient to assure reasonably that these products comply with the flammability standards. Rather, a person seeking to evaluate garments made of such materials should assure that the program tests a sufficient number of samples to provide adequate assurance that such textile products comply with the general wearing apparel standard. The number of samples to be tested, and the corresponding degree of confidence that products tested will comply, are to be specified by the individual designing the test program. However, in assessing the reasonableness of a test program, the Commission staff will specifically consider the degree of confidence that the program provides. (c) Suggestions. (1) Purchase fabrics or garments that meet testing exemptions listed in § 1610.1(d). (If buyers or other personnel do not have skills to determine if the fabric is exempted, hire a textile consultant or a test lab for an evaluation.) (2) For fabrics that are not exempt, conduct reasonable and representative testing before cutting and sewing, using standard operating characteristic curves for acceptance sampling to determine a sufficient number of tests. (3) Purchase fabrics or garments that have been guarantied and/or tested by the supplier using a reasonable and representative test program that uses standard operating characteristic curves for acceptance sampling to determine a sufficient number of tests. Firms should also receive and maintain a copy of the guaranty. (4) Periodically verify that your suppliers are actually conducting appropriate testing. Figure 1 to Part 1610—Sketch of Flammability Apparatus Figure 2 to Part 1610—Flammability Apparatus Views Figure 3 to Part 1610—Specimen Holder Supported in Specimen Rack Figure 4 to Part 1610—An Example of a Typical Indicator Finger Figure 5 to Part 1610—An Example of a Typical Gas Shield Figure 6 to Part 1610—Igniter [73 FR 62187, Oct. 20, 2008] Figure 7 to Part 1610—Brushing Device Figure 8 to Part 1610—Brush Figure 9 to Part 1610—Brushing Device Template [73 FR 62187, Oct. 20, 2008]