Rules and Regulations Under the Textile Fiber Products Identification Act

I. Background

A. Statutory and Regulatory Framework

Section 4(b)(1) of the Textile Fiber Products Identification Act (``the Act'') declares that a textile product will be misbranded unless it is labeled to show, among other elements, the percentages, by weight, of the constituent fibers (or fiber combinations) in the product, designated by their generic name and in order of predominance by weight. 15 U.S.C. 70b(b)(1). Section 4(c) of the Act provides that the same information

required by section 4(b)(1) (except the percentages) must appear in written advertisements for covered textile products. 15 U.S.C. 70b(c). Section 7(c) empowers the Commission to promulgate such rules, including the establishment of generic names of manufactured fibers, as are necessary to enforce the Act's directives. 15 U.S.C. 70e(c). Rule 8 of the Textiles rules contains the Commission's procedures for establishing new generic names. 16 CFR 303.8 (1996). Rule 6 requires manufacturers to use the generic names of the fibers contained in their textile fiber products when they disclose fiber content as required by the Act and the Textile Rules. 16 CFR 303.6 (1996). Rule 7 lists the generic names and definitions that the Commission has established for manufactured fibers. 16 CFR 303.7 (1996).

B. Procedural History

Teijin submitted its petition to the Commission in this matter on October 30, 1992, and subsequently submitted additional information. Teijin requested that its new fiber, REXE, be given one of the following generic names, in descending order of its preference: (1) ``Polyetherester,'' (2) ``Elastoester,'' or (3) ``Estelast.'' Teijin also suggested a definition for the new fiber. The application and related materials were placed on the rulemaking record. After an initial analysis, the Commission issued the designation ``TL 0001'' on December 29, 1992, for Teijin's temporary use in identifying REXE until a final determination could be made as to the merits of the application. The Commission subsequently requested and received additional information from Teijin pertaining to its fiber's chemical and physical properties, as well as information concerning Teijin's plans for marketing the fiber. After analyzing this supplemental information, on July 9, 1996, the Commission published a Notice of Proposed Rulemaking (``NPR'') detailing the technical aspects of Teijin's fiber and requesting public comment on whether to add a new generic fiber name and definition to Rule 7 of the Textile Rules.\1\ On September 10, 1996, the comment period created by the NPR closed. No comments were received. ---------------------------------------------------------------------------

\1\ 61 FR 35992 (July 9, 1996). ---------------------------------------------------------------------------

II. Description of Teijin's Fiber and Solicitation of Comments in the NPR

The NPR provided a detailed description, taken from Teijin's application, of REXE's chemical composition and physical and chemical properties.\2\ Teijin maintained that its new fiber, which is manufactured from poly tetramethylene ether/poly butylene glycol terephthalate copolymer, has a unique chemical composition and distinctive physical characteristics so it cannot be identified by any of the generic names already established by the Commission in Rule 7 of the Textile Rules. 16 CFR 303.7 (1996). Teijin also stated that it intends to market the fiber commercially, and said in subsequent information that REXE is now being sold and used in the United States. ---------------------------------------------------------------------------

\2\ Id., at 35993 (July 9, 1996). For brevity's sake, the Commission is providing a simplified description of the fiber today, and refers those members of the public who wish to see detailed technical information about the fiber to the earlier description in the NPR. ---------------------------------------------------------------------------

In the NPR, the Commission solicited comment on Teijin's application generally, but asked especially whether the application met the following criteria, which the Commission has identified in the past as grounds for granting applications for new generic names:

1. The fiber for which a generic name is requested must have a chemical composition radically different from other fibers, and that distinctive chemical composition must result in distinctive physical properties of significance to the general public. 2. The fiber must be in active commercial use or such use must be immediately foreseen. 3. The grant of the generic name must be of importance to the consuming public at large, rather than to a small group of knowledgeable professionals such as purchasing officers for large Government agencies.\3\

\3\ The Commission added: [W]here appropriate, in considering applications for new generic names for fibers that are of the same general chemical composition as those for which a generic name already has been established, rather than of a chemical composition that is radically different, but that have distinctive properties of importance to the general public as a result of a new method of manufacture or their substantially differentiated physical characteristics, such as their fiber structure, [the Commission] may allow such fiber to be designated in required information disclosures by either its generic name, or alternatively, by its ``subclass'' name. The Commission will consider this disposition when the distinctive feature or features of the subclass fiber make it suitable for uses for which other fibers under the established generic name would not be suited or would be significantly less well suited. See 60 FR 62352, 62353 (Dec. 6, 1995) (reaffirming and clarifying criteria first announced at 38 FR 34114 (Nov. 12, 1973)). ---------------------------------------------------------------------------

The Commission also asked for comment on the names suggested by Teijin for the fiber and proposed the following definition for Teijin's new fiber:

A manufactured fiber in which the fiber-forming substance is a long-chain synthetic polymer composed of at least 50% by weight of aliphatic polyether and at least 35% by weight of polyester, as defined in 16 CFR Sec. 303.7(c).

III. Discussion

A. Distinctive Chemical Composition and Physical Properties of Importance to the Public

The only fiber to which REXE is somewhat similar chemically is polyester, and the Commission considered, therefore, whether to include the fiber under the definition in Rule 7 for polyester, either in its present form or modified to accommodate the characteristics of REXE. After analyzing the evidence, however, the Commission agrees with Teijin that REXE is not ``composed of at least 85% by weight of an ester of a substituted aromatic carboxylic acid,'' as is specified in the definition of polyester in the Textile Rules.\4\ Moreover, there is evidence that REXE's physical properties are quite different from those of polyester, as the Commission reported in the NPR. The Commission concludes, therefore, that it would be inappropriate to include REXE under the definition of polyester. ---------------------------------------------------------------------------

\4\ 61 FR 35993 (July 9, 1996); see 16 CFR 303.7(c) for the definition of polyester. ---------------------------------------------------------------------------

Because one of REXE's physical characteristics is that it has elastic properties, the Commission considered whether it could encompass REXE within any of the current generic fibers with elastic properties that are defined in the Textile Rules, such as rubber, lastrile, spandex (to which Teijin compared, and with which it contrasted, REXE in its application), or anidex. Because REXE is considered an elastomeric polyester, however, and therefore consists of polyester and polyether segments, it has a different chemical composition from the fibers that fall under those four definitions. Thus, the Commission concludes that it would be inappropriate to include REXE under any of the existing definitions for fibers with elastic properties. Teijin's fiber has several physical properties that are important to the public. As stated above, it has elastic properties; in addition, it is readily washable, and can withstand high temperatures when wet, which is particularly important with respect to dyeing. This tolerance of high temperature also could allow the development of elastic fabrics (for example, a combination of REXE and polyester) that would have many of the properties of polyester, such as excellent washability. Finally, fabrics made of REXE and polyester are less discolored or adversely affected by chlorine than fabrics made of nylon and

spandex, which is important in the case of such products as swimming suits.

B. Active Commercial Use

Although the information available when the NPR was published did not establish exactly when REXE was first marketed in the U.S., it is clear that by March 1995 REXE was in use, although not in large quantities, in products covered by the Textile Act.\5\ The garments were mostly sportswear, including swim suits, cycling pants and ski pants. Thus, the Commission concludes that the Teijin fiber is in ``active commercial use.'' ---------------------------------------------------------------------------

\5\ Teijin represented to the Commission that 6,100 yards of REXE were used in the U.S. in 1994, that total production of REXE in 1994 was 67 metric tons, and that estimated 1995 production was 65 metric tons. ---------------------------------------------------------------------------

C. Importance to the Consuming Public

Based on REXE's ability to be used in sportswear for swimming and cycling, the Commission concludes that the fiber may be used by the consuming public in general, and that the granting of this new generic fiber name and definition will not be of interest only to ``a small group of knowledgeable professionals, such as purchasing officers for large Government agencies.''

D. New Generic Fiber Definition

The Commission finds that REXE possesses a distinctive chemical composition not encompassed by any of the Textile Rules' existing generic definitions for manufactured fibers, that its physical properties are important to the public, that the fiber is in active commercial use, and that the granting of a new generic name and definition is important to the consuming public at large. Accordingly, and given that the Commission has received no additional information bearing on this issue beyond that available to it when it published the NPR, the Commission today amends Rule 7 of the Textile Rules by adding the following new definition for Teijin's fiber, which it proposed in the NPR:

A manufactured fiber in which the fiber-forming substance is a long-chain synthetic polymer composed of at least 50% by weight of aliphatic polyether and at least 35% by weight of polyester, as defined in 16 CFR 303.7(c).

E. New Generic Name

Although each of the three generic names for REXE that Teijin suggested has merit, the Commission believes that the name ``elastoester'' is most likely to communicate to consumers that REXE (and other fibers that would fall within the definition's purview) has the qualities of an elastomer and a polyester, which would tend to make purchasing decisions easier. Therefore, the Commission adopts the generic name ``elastoester'' for Teijin's fiber.

IV. Regulatory Flexibility Act

In the NPR, the Commission tentatively concluded that the provisions of the Regulatory Flexibility Act relating to an initial regulatory analysis, 5 U.S.C. 603-604, did not apply to this proposal because the amendment, if promulgated, would not have a significant economic impact on a substantial number of small entities. The Commission believed that the proposed amendment would impose no additional obligations, penalties, or costs. The amendment simply would allow covered companies to use a new generic name for a new fiber that may not appropriately fit within current generic names and definitions, and would impose no additional labeling requirements. To ensure, however, that no substantial economic impact was overlooked, the Commission solicited public comment in the NPR on the effect of the proposed amendment on costs, profits, competitiveness of, and employment in small entities. No comments were received on this (or any other) issue in response to the NPR. Accordingly, the Commission hereby certifies, pursuant to the Regulatory Flexibility Act, 5 U.S.C. 605(b), that the amendment promulgated today will not have a significant economic impact on a substantial number of small entities.

V. Paperwork Reduction Act

This proposed amendment does not constitute a ``collection of information'' under the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35 (as amended), and its implementing regulations, 5 CFR 1320 et seq. (1996). The collection of information imposed by the procedures for establishing generic names, 16 CFR 303.8 (1996), has been submitted to OMB and has been assigned Control Number 3084-0101.

List of Subjects in 16 CFR Part 303

Labeling, Textile, Trade practices.

Text of Amendments

For the reasons set forth in the preamble, 16 CFR Part 303 is amended as follows:

PART 303--RULES AND REGULATIONS UNDER THE TEXTILE FIBER PRODUCTS IDENTIFICATION ACT

1. The authority citation for Part 303 continues to read as follows:

Authority: 15 U.S.C. 70 et seq.

2. In Sec. 303.7, paragraph (v) is added, to read as follows:

Sec. 303.7 Generic names and definitions for manufactured fibers.

* * * * * (v) Elastoester. A manufactured fiber in which the fiber-forming substance is a long-chain synthetic polymer composed of at least 50% by weight of aliphatic polyether and at least 35% by weight of polyester, as defined in 16 CFR 303.7(c).

By direction of the Commission. Donald S. Clark, Secretary. [FR Doc. 97-13607 Filed 5-22-97; 8:45 am] BILLING CODE 6750-01-M