Textile Fiber Products Identification Act: p; new generic fiber name and definition,

[Federal Register: November 27, 2002 (Volume 67, Number 229)]

[Rules and Regulations]

[Page 70835-70839]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr27no02-2]

FEDERAL TRADE COMMISSION

16 CFR Part 303

Rules and Regulations Under the Textile Fiber Products Identification Act

AGENCY: Federal Trade Commission.

ACTION: Final rule.

SUMMARY: The Federal Trade Commission (``Commission'') announces amendments to Rule 7(c) of the Rules and Regulations Under the Textile Fiber Products Identification Act (``Textile Rules'') to establish a new generic fiber subclass name and definition for a subclass of polyester fibers manufactured by E. I. du Pont de Nemours and Company (``DuPont''), of Wilmington, Delaware. The amendments to Rule 7(c) establish the subclass name ``elasterell-p'' as an alternative to the generic name ``polyester'' for a specific subclass of inherently elastic, multicomponent textile fibers defined in the amendments, and previously referred to by DuPont as ``T400.''

EFFECTIVE DATE: November 27, 2002.

FOR FURTHER INFORMATION CONTACT: Neil Blickman, Attorney, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, Washington, D.C., 20580; (202) 326-3038.

SUPPLEMENTARY INFORMATION:

1. Background

   1. Statutory and Regulatory Framework

      Section 4(b)(1) of the Textile Fiber Products Identification Act (``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 in the product, designated by their generic names 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 if any disclosure or implication of fiber content is made regarding a covered textile product. 15 U.S.C. 70b(c). Section 7(c) directs 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 6 of the Textile Rules (16 CFR 303.6) requires manufacturers to use the generic names of the fibers contained in their textile products in making required fiber content disclosures on labels. Rule 7 of the Textile Rules (16 CFR 303.7) sets forth the generic names and definitions that the Commission has established for synthetic fibers. Rule 8 (16 CFR 303.8) describes the procedures for establishing new generic names.

   2. Procedural History

      DuPont applied to the Commission on February 5, 2001, for a new polyester fiber subclass name and definition, and supplemented its application with additional information and test data on March 18, 2001, and August 23, 2001.\1\

      [[Page 70836]]

      DuPont stated that the T400 fiber is an inherently elastic, manufactured textile fiber consisting of two substantially different forms of polyester fibers. DuPont maintained further that T400 is distinguished from commercially available fibers by a significant and long-lived stretch and recovery characteristic fitting between conventional textured polyesters and spandex.

      \1\ DuPont's petition and supplements thereto are on the rulemaking record of this proceeding. This material, as well as the comments that were filed in this proceeding, are available for public inspection in accordance with the Freedom of Information Act, 5 U.S.C. 552, and the Commission's rules of practice, 16 CFR 4.11, at the Consumer Response Center, Public Reference Section, Room 130, Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC. The comments that were filed are found under the Rules and Regulations Under the Textile Fiber Products Identification Act, 16 CFR part 303, Matter No. P948404, ``DuPont Generic Fiber Petition Rulemaking.'' The comments also may be viewed on the Commission's Web site at http://www.ftc.gov.

      Contending that the unique structure and characteristics of fibers made from T400 are inadequately described under existing generic names listed in the Textile Rules, DuPont petitioned the Commission to establish a new generic subclass name and definition. After an initial analysis with the assistance of a textile expert, the Commission determined that DuPont's proposed new fiber technically falls within Rule 7(c)'s definition of ``polyester.''\2\ The Commission further determined, however, that DuPont's application for a new subclass name and definition merited further consideration. Accordingly, on May 21, 2001, the Commission announced that it had issued DuPont the designation ``DP 0002'' for temporary use in identifying T400 fiber pending a final determination on the merits of the application for a new generic fiber subclass name and definition. The Commission staff further analyzed the application, and on February 15, 2002 (67 FR 7104), the Commission published a Notice of Proposed Rulemaking (``NPR'') detailing the technical aspects of DuPont's fiber, and requesting public comment on DuPont's application. On April 19, 2002, the comment period closed.

      \2\ Rule 7(c) defines ``polyester'' as ``[a] manufactured fiber in which the fiber-forming substance is any long chain synthetic polymer composed of at least 85% by weight of an ester of a substituted aromatic carboxylic acid, including but not restricted to substituted terephthalate units, [formula omitted] and para substituted hydroxy-benzoate units, [formula omitted].'' 16 CFR 303.7(c).

2. Description of the Fiber and Solicitation of Comments in the NPR

   1. The Commission's Criteria for Granting a New Generic Fiber Subclass Name and Definition, and Related Issues

      In the NPR, the Commission solicited comment on whether DuPont's application meets the Commission's criteria for granting applications for new generic fiber subclass names.

      The Commission articulated standards for establishing a new generic fiber ``subclass'' in the proceeding to allow use of the name ``lyocell'' as an alternative generic description for a specifically defined subcategory of ``rayon'' fiber, pursuant to 16 CFR 303.7(d). There, the Commission noted that:

      Where 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.\3\

      \3\ 60 FR 62352, 62353 (Dec. 6, 1995).

      Thus, a new generic fiber subclass may be appropriate in cases where the proposed subclass fiber: (1) Has the same general chemical composition as an established generic fiber category; (2) has distinctive properties of importance to the general public as a result of a new method of manufacture or substantially differentiated physical characteristics, such as fiber structure; and (3) the distinctive feature(s) make the fiber suitable for uses for which other fibers under the established generic name would not be suited, or would be significantly less well suited.\4\

      \4\ The criteria for establishing a new generic subcategory are different from the criteria to establish a new generic category. The Commission's criteria for granting applications for new generic names are as follows: (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; and (3) the granting 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. The Commission believes it is in the public interest to prevent the proliferation of generic names, and will adhere to a stringent application of these criteria in consideration of any future applications for generic names, and in a systematic review of any generic names previously granted that no longer meet these criteria. The Commission announced these criteria on Dec. 11, 1973, at 38 FR 34112, and later clarified and reaffirmed them on Dec. 6, 1995, 60 FR 62353, on May 23, 1997, 62 FR 28343, on Jan. 6, 1998, 63 FR 447 and 63 FR 449, and on Nov. 17, 2000, 65 FR 69486, on Feb. 15, 2002, 67 FR 7104, and on May 24, 2002, 67 FR 36551.

      Within the established 24 generic names for manufactured fibers, there are three cases where such generic name alternatives may be used: (1) Pursuant to Rule 7(d), 16 CFR 303.7(d), within the generic category ``rayon,'' the term ``lyocell'' may be used as an alternative generic description for a specifically defined subcategory of rayon fiber; (2) pursuant to Rule 7(e), 16 CFR 303.7(e), within the generic category ``acetate,'' the term ``triacetate'' may be used as an alternative generic description for a specifically defined subcategory of acetate fiber; and (3) pursuant to Rule 7(j), 16 CFR 303.7(j), within the generic category ``rubber,'' the term ``lastrile'' may be used as an alternative generic description for a specifically defined subcategory of rubber fiber.

      Although the Commission's NPR announced that DuPont's fiber technically falls within Rule 7(c)'s definition of polyester, it noted that DuPont's application may meet the Commission's standard for a subclass name. Alternatively, the Commission stated that T400 may fit within the current definition of polyester in Rule 7(c), with or without need for clarification. Therefore, the Commission requested public comment on whether to: (1) Broaden Rule 7(c)'s definition of polyester to better describe the allegedly unique molecular structure and physical characteristics of T400 and any similar fibers (without creating a new subclass for T400); (2) amend Rule 7(c)'s definition of polyester by creating a separate subclass name and definition for T400 and other similar qualifying fibers within the polyester category; or (3) deny DuPont's application because T400 fiber fits within Rule 7(c)'s definition of polyester without need for any change.

   2. The NPR

      1. Fiber Description and Proposed Subclass Name and Definition

         The NPR provided a detailed description, taken from DuPont's application, of T400's chemical composition and physical and chemical properties.\5\ As a result of T400's fiber structure, DuPont maintained that T400 has the following distinctive properties that would be significant to consumers: (1) Stretch and recovery power that is far superior to that of any textured fiber, including textured polyesters; (2) the superior stretch and recovery property does not degrade or ``sag'' over time with normal use and washings,

         [[Page 70837]]

         compared to textured fibers, including polyesters; and (3) a softer ``silkier'' feel or ``hand'' than textured polyester fibers. DuPont asserted that T400 will fill a growing and unmet consumer demand for stretch garments with fibers that can yield quality stretch and recovery without degrading over time like textured polyester fibers. DuPont further contended that it would be confusing to consumers if T400 is called simply ``polyester.''

         \5\ 67 FR 7104, at 7105-7109 (Feb. 15, 2002). For brevity's sake, the Commission is providing a simplified description of the fiber in this notice, and refers those who wish to see detailed technical information about the fiber to the earlier description in the NPR.

         DuPont, therefore, petitioned the Commission to establish the generic name ``elasterell-p'' as an alternative to, and a subclass of, ``polyester.'' In addition, DuPont proposed that the Commission add the following sentence to the current definition of polyester in Rule 7(c) to define T400 and similar fibers as a subclass of polyester:

         Where the fiber is a multicomponent and exhibits inherent (not mechanically induced) recoverable stretch of at least 35% upon loading with 185 mg/dtex and unloading to 5.4 mg/dtex when tested in accordance with ASTM test D6720, the term ``elasterell-p'' may be used as a generic description of the fiber.

         The effect of DuPont's proposed amendment would be to allow use of the name ``elasterell-p'' as an alternative to the generic name ``polyester'' for the subcategory of polyester fibers meeting the further criteria contained in the sentence added by the proposed amendment. 2. The Parallel European Proceeding

         During this proceeding, but after the comment period closed, the Commission staff was informed that in May 2002, the International Bureau for the Standardization of Man-Made Fibres (``BISFA'')\6\ determined that as a result of T400's distinguishing attributes, and the technology utilized to manufacture it, DuPont's fiber merited a new generic name and definition. Accordingly, BISFA has established the following generic name and definition for DuPont's T400 fiber:

         \6\ BISFA, founded in 1928, and located in Brussels, Belgium is the international association of man-made fiber producers. BISFA establishes generic names and definitions for man-made fibers and procedures and test methods for different categories of man-made fibers. It also sets general rules for the settling of disputes between sellers and buyers of man-made fibers. BISFA provides an international voice for the man-made fiber industry in these matters and promotes the adoption of its methods and terminology by other standard-setting organizations.

         ``multelastester:'' fibre formed by interaction of 2 or more chemically distinct macromolecules (of which none exceeds 85% by mass) which contains ester groups as dominant functional unit (at least 66%) and which, if stretched at least 100%, durably and rapidly reverts substantially to its unstretched length when the

         tension is removed.

         In accordance with BISFA's policies and procedures, the BISFA- approved name, ``multelastester,'' and its definition have been communicated to the International Organization for Standardization (``ISO'') for introduction into ISO Standard 2076, which includes man- made textile fiber generic names and definitions. BISFA representatives expect the ISO proceeding to conclude in 2003.

         The Commission has taken notice of this proceeding because the Textile Rules incorporated by reference the generic fiber names and definitions for manufactured fibers that existed in ISO Standard 2076 in 1989. The Commission also amended the Rules once to incorporate a revised version of that Standard.\7\

         \7\ See 65 FR 75154 (Dec. 1, 2000), as well as the first paragraph of 16 CFR 303.7, incorporating by reference ISO generic names and definitions.

      3. Discussion of the Public Comments

         The Commission received comments from the American Fiber Manufacturers Association, Inc. (``AFMA''), and Nan Ya Plastics Corporation, America (``Nan Ya''), a U.S. manufacturer of polyester for the packaging and textile industries. AFMA does not object to amending Rule 7(c) of the Textile Rules by creating a separate subclass name and definition for T400 and other similar qualifying fibers within the polyester category. AFMA, however, recommended that the Commission take account of the parallel European proceeding, and suggested that the Commission use compatible nomenclature in establishing the new generic subclass to avoid confusion in the marketplace.

         Nan Ya, although a member of AFMA, opposed creating a separate subclass name and definition for T400. Specifically, Nan Ya commented that DuPont's fiber is not sufficiently unique to merit a separate generic subclass. Nan Ya stated that what may be unique about DuPont's fiber is the composition of the particular polyester polymers selected for the components, perhaps coupled with specific spinning and heat treatment conditions, to produce a polyester bicomponent fiber that exhibits properties especially suitable for use in stretch garments. Nan Ya stated, however, that these conditions, which may be patentable, result in a polyester bicomponent fiber with some properties that differ only in degree from the properties of other polyester bicomponent fibers, and not in a fiber worthy of being designated by a new generic subclass. Nan Ya stated that bicomponent yarns in which both components are polyester currently are manufactured by several companies.

         Nan Ya commented further that creating a subclass for T400 could result in giving DuPont an unfair competitive advantage in the marketplace. For example, Nan Ya suggested that DuPont's patent protection for its T400 fiber and manufacturing process could prevent other manufacturers from making or selling any fiber falling within the new subclass. Further, Nan Ya stated that creating a new subclass would cause consumer confusion because manufacturers producing polyester bicomponent fibers with characteristics only slightly outside the parameters proposed by DuPont, whether to achieve other desired properties or to avoid patent infringement, would be required to call their product polyester, and would not be permitted to use the new subclass name. The result would be that polyester bicomponent fibers with similar characteristics, but different generic names, would be sold to consumers.\8\

         \8\ Nan Ya also proposed expansion of 16 CFR 303.10(c) to include bicomponent fibers in which the two components are of the same fiber. Such a proposal, however, does not adequately address DuPont's petition, would require an additional public comment period and, therefore, is beyond the scope of this proceeding.

      4. Discussion of the Three Criteria for Granting New Generic Subclass Names

         1. T400 Fiber's Chemical Composition

            The materials DuPont submitted show that while T400 has the same general chemical composition as other polyester fibers, it also has a molecular and fiber structure that differs from chemically homogeneous polyesters. Although each of the two components of T400 is from the same polymer class, DuPont has combined the two chemically different polyesters in a side-by-side arrangement. A helical crimp resulting from the differential shrinkage of the two different polyesters in T400 results in a level of increased inherent stretch and recovery uncharacteristic of chemically homogeneous polyesters. The stretch and recovery is not physically induced like texturizing, but is inherent in the helical fiber structure, and the stretch recovery power is sustained and superior over time. Thus, DuPont's application meets the first criterion for granting a new generic fiber subclass name.

            [[Page 70838]]

         2. T400's Distinctive Properties as a Result of a New Method of Manufacture or Substantially Differentiated Physical Characteristics, Such as Fiber Structure

            The materials submitted by DuPont also show that the most notable characteristic (and of greatest importance to consumers) of T400 is its stretch and recovery power, which is superior to that of chemically homogeneous polyesters. This property is a direct result of the fiber structure of T400. DuPont compared the stretch and recovery of several false twist textured fibers to T400. The range of recoverable stretch values for T400, which is well above 35%, reflects the fact that DuPont can vary the stretch and recovery of the fiber by adjusting the spinner conditions. The recoverable stretch values for the polyester fibers DuPont described as 2GT, 3GT, and 4GT are below 35%. An additional distinctive property of T400 is that its superior stretch and recovery does not degrade over time as compared to some textured fibers, including polyesters. The uniqueness of T400 is derived from the natural helical coil imparted by the differential shrinkage of the two polymer components. T400's differentiated physical characteristics, therefore, satisfy this second criterion.

         3. T400's Distinctive Features Make the Fiber Suitable for Uses for Which Other Polyester Fibers Would Not Be Suited, or Would Be Significantly Less Well Suited

            The evidence submitted by DuPont supports the Commission's conclusion that textured polyesters are not suitable, or not as suitable, for imparting the significant stretch to certain garments, such as sports apparel, that consumers may expect or desire, and that T400 is a suitable stretch component. Thus, DuPont's application has satisfied the Commission that T400 is suitable for uses for which other polyester fibers are not suited, or not as well suited. Accordingly, the Commission agrees with DuPont that the granting of a generic subclass name to describe T400 is of importance to the general public, and not just a few knowledgeable professionals. A new generic subclass name will enable consumers to identify textile fiber products, such as sports apparel, containing T400 (and other inherently elastic multicomponent polyester fibers) that exhibit significant inherent stretch and recovery power that does not degrade over time. 5. Conclusion

            Based on its review of the comments and the BISFA proceeding, and in consultation with its expert, the Commission has concluded that T400: (1) Has the same general chemical composition as an established generic fiber category (polyester); (2) has distinctive properties of importance to the general public as a result of a new method of manufacture or substantially differentiated physical characteristics, such as fiber structure (e.g., inherent elasticity); and (3) that its distinctive feature(s) make the fiber suitable for uses for which other fibers under the established polyester generic name would not be suited, or would be significantly less well suited. Specifically, the side-by-side molecular structure of the multicomponent polyester fiber, T400, differs distinctly from chemically homogenous polyester fibers by possessing intrinsic elastic properties. The dissimilarities are due to the physical interaction of the two chemically distinct polyesters present, which result not only in inherent elasticity/recovery properties, but also in a changed structure. As a multicomponent polyester fiber, T400 has a uniform helical crimp that is not present in a chemically homogeneous polyester, even after texturing.

            Accordingly, although T400 arguably is comparable to other multicomponent polyester fibers (as Nan Ya pointed out) there are sufficient differences to merit a new subclass designation. Therefore, the Commission is amending Rule 7(c) to adopt and define the generic subclass name ``elasterell-p,'' and to allow use of the name ``elasterell-p'' as an alternative to the generic name ``polyester'' for that subclass of fiber. However, because T400 also is arguably comparable to other multicomponent polyester fibers, other companies that manufacture fibers satisfying the definition may use the subclass name in making required fiber content disclosures on labels.

            Although BISFA has adopted and reported a different name to ISO for inclusion in ISO Standard 2076 to define T400 and a broad class of multicomponent fibers, BISFA's definition does not work under the Commission's regulatory scheme. BISFA's definition includes fibers that may not in all cases satisfy the definition of ``polyester'' in Rule 7(c).\9\ Thus, BISFA's precise definition is somewhat too broad to be permissible as a ``polyester'' generic fiber subclass definition within Rule 7(c).\10\

            \9\ The BISFA definition requires that the fiber-forming polymer be composed of at least 66% by weight of an ester, while Rule 7(c)'s definition of polyester requires at least 85% by weight of an ester.

            \10\ At the same time, when approved by ISO, the term ``multelastester,'' and its somewhat broader definition, could be recognized by the Commission by amending Rule 7 to incorporate a newly recognized ISO name, as we have done previously. That process does not create the problems that are inherent in amending the Commission's Rules to use the BISFA definition, which conflicts with the FTC's long-established definition of polyester.

            To minimize conflict with BISFA's proposal, however, the Commission is revising the definition proposed in the NPR. The new definition of elasterell-p defines it generically in terms of its chemical composition and focuses less on its physical recoverable stretch characteristic.\11\ This definition is consistent with the definition of ``polyester'' in Rule 7(c) and it is consistent with, but a bit narrower than, the definition of multelastester adopted by BISFA.\12\ Further, because it is written in terms of the chemical structure of the fiber, it is consistent with the other generic fiber definitions in Rule 7. It also does not unnecessarily exclude any multicomponent polyester fiber from the subclass, which should address Nan Ya's primary concern.

            \11\ Accordingly, the revised definition no longer includes an American Society for Testing and Materials (``ASTM'') test procedure, as proposed in the NPR. This test procedure related to the fiber's physical characteristics and is not needed under the revised, chemical-based definition.

            \12\ The proposed definition varies from the BISFA definition slightly so that a fiber satisfying the elasterell-p subclass definition can be designated in required information disclosures by either its generic name, ``polyester,'' or, alternatively, by its subclass name. In addition, the Commission uses the terms ``polymers'' and ``weight'' in Rule 7's generic fiber name definitions, rather than the synonymous ISO terms ``macromolecules'' and ``mass.''

            Accordingly, for the reasons discussed above, the Commission amends Rule 7(c) of the Textile Rules by adding the following sentence at the end:

            Where the fiber is formed by the interaction of two or more chemically distinct polymers (of which none exceeds 85% by weight), and contains ester groups as the dominant functional unit (at least 85% by weight of the total polymer content of the fiber), and which, if stretched at least 100%, durably and rapidly reverts substantially to its unstretched length when the tension is removed, the term elasterell-p may be used as a generic description of the fiber.

3. Effective Date

   The Commission is making the amendments effective today, November 27, 2002, as permitted by 5 U.S.C. 553(d), because the amendments do not create new obligations under the Rule; rather, they merely create a fiber name and definition that the public may use to comply with the Rule.

4. Regulatory Flexibility Act

   In the NPR, the Commission tentatively concluded that the

   [[Page 70839]]

   provisions of the Regulatory Flexibility Act relating to an initial regulatory analysis, 5 U.S.C. 603-604, did not apply to the proposal because the amendments, if promulgated, would not have a significant economic impact on a substantial number of small entities. The Commission believed that the proposed amendments would impose no additional obligations, penalties, or costs. The amendments simply would allow covered companies to use a new generic name as an alternative to an existing generic name for that defined subclass of fiber, 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 effects of the proposed amendments on costs, profits, competitiveness of, and employment in small entities. 67 FR 7104, at 7109 (Feb. 15, 2002).

   No comments were received on this issue. Accordingly, the Commission hereby certifies, pursuant to the Regulatory Flexibility Act, 5 U.S.C. 605(b), that the amendments promulgated today will not have a significant economic impact on a substantial number of small entities.

5. Paperwork Reduction Act

   These amendments do not constitute ``collection[s] of information'' under the Paperwork Reduction Act of 1995, Pub. L. 104-13, 109 Stat. 163, 44 U.S.C. chapter 35 (as amended), and its implementing regulations, 5 CFR 1320 et seq. Those procedures for establishing generic names that do constitute collections of information, 16 CFR 303.8, have been submitted to OMB, which has approved them and assigned them control number 3084-0101.

   List of Subjects in 16 CFR Part 303

   Labeling, Textile, Trade Practices.

6. Text of Amendments

   For 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: Sec. 7(c) of the Textile Fiber Products Identification Act (15 U.S.C. 70e(c)).

   2. In Sec. 303.7, paragraph (c) is amended by adding a sentence at the end, to read as follows:

      Sec. 303.7 Generic names and definitions for manufactured fibers.

      * * * * *

      (c) * * *

      Where the fiber is formed by the interaction of two or more chemically distinct polymers (of which none exceeds 85% by weight), and contains ester groups as the dominant functional unit (at least 85% by weight of the total polymer content of the fiber), and which, if stretched at least 100%, durably and rapidly reverts substantially to its unstretched length when the tension is removed, the term elasterell-p may be used as a generic description of the fiber. * * * * *

      By direction of the Commission. Donald S. Clark, Secretary.

      [FR Doc. 02-30085 Filed 11-26-02; 8:45 am]

      BILLING CODE 6750-01-P