Dive Sticks; Notice of Proposed Rulemaking
[Federal Register: July 19, 2000 (Volume 65, Number 139)]
[Proposed Rules]
[Page 44703-44709]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19jy00-25]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 44703]]
CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1500
Dive Sticks; Notice of Proposed Rulemaking
AGENCY: Consumer Product Safety Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Commission is proposing a rule to ban certain dive sticks
under the authority of the Federal Hazardous Substances Act. Dive
sticks are used for underwater activities, such as retrieval games and
swimming instruction. They are typically made of rigid plastic and
stand upright at the bottom of a swimming pool. Due to these
characteristics, if a child jumps onto a dive stick in shallow water he
or she may suffer severe injuries.
DATES: Written comments in response to this notice must be received by
October 2, 2000.
ADDRESSES: Comments should be mailed, preferably in five copies, to the
Office of the Secretary, Consumer Product Safety Commission,
Washington, DC 20207-0001, or delivered to the Office of the Secretary,
Consumer Product Safety Commission, Room 502, 4330 East-West Highway,
Bethesda, Maryland; telephone (301) 504-0800. Comments also may be
filed by telefacsimile to (301) 504-0127 or by email to cpsc-
os@cpsc.gov. Comments should be captioned ``NPR for Dive Sticks.''
FOR FURTHER INFORMATION CONTACT: Scott R. Heh, Directorate for
Engineering Sciences, Consumer Product Safety Commission, Washington,
DC 20207; telephone (301) 504-0494, ext. 1308.
SUPPLEMENTARY INFORMATION:
A. Background
As of October 1999, the Commission is aware of eight confirmed
impalement incidents involving dive sticks that were submerged and
standing vertically. These incidents resulted in injuries to the
perineal region of young children. The products were cylindrical
batons, approximately 7\7/8\ to 8\5/8\ inches long and \7/8\ to one
inch in diameter. They were all constructed of rigid plastic.
In early 1999, when the Commission staff first learned of incidents
involving dive sticks, the staff worked with product manufacturers to
recall hazardous dive sticks. On June 24, 1999, the Commission
announced that it had reached agreements with 15 manufacturers and
importers to voluntarily recall their dive sticks. The recalls have
removed most dive sticks from the market.[1]\1\ However, because the
hazard posed by dive sticks appeared to be inherent to the product and
not related to any specific model or manufacturer, the Commission began
a proceeding to ban all dive sticks with hazardous characteristics.
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\1\ Numbers in brackets refer to documents listed at the end of
this notice.
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On July 16, 1999, the Commission issued an advance notice of
proposed rulemaking (``ANPR'') announcing the Commission's intent to
issue a rule addressing the risk of injury presented by dive sticks. 64
FR 38387 (1999). One alternative discussed in the ANPR was a rule
declaring certain dive sticks to be banned hazardous substances. The
Commission received one comment on the ANPR from the Department of Fair
Trading, New South Wales (``NSW''), Australia. Although the NSW
Department of Fair Trading states that it is unaware of any similar
incidents in Australia, NSW is taking certain steps to protect against
such injuries occurring, including issuing a design guide requiring
that underwater toys be designed to reduce the hazard of impalement.[3]
B. Statutory Authority
This proceeding is conducted pursuant to the Federal Hazardous
Substances Act (``FHSA''), 15 U.S.C. 1261 et seq. Section 2(f)(1)(D) of
the FHSA defines ``hazardous substance'' to include any toy or other
article intended for use by children that the Commission determines, by
regulation, presents an electrical, mechanical, or thermal hazard. 15
U.S.C. 1261(f)(1)(D). An article may present a mechanical hazard if its
design or manufacture presents an unreasonable risk of personal injury
or illness during normal use or when subjected to reasonably
foreseeable damage or abuse. Among other things, a mechanical hazard
could include a risk of injury or illness ``(3) from points or other
protrusions, surfaces, edges, openings, or closures, * * * or (9)
because of any other aspect of the article's design or manufacture.''
15 U.S.C. 1261(s).
Under section 2(q)(1)(A) of the FHSA, a toy, or other article
intended for use by children, which is or contains a hazardous
substance accessible by a child is a ``banned hazardous substance.'' 15
U.S.C. 1261(q)(1)(A).
Section 3(f) through 3(i) of the FHSA, 15 U.S.C. 1262(f)-(i),
governs a proceeding to promulgate a regulation determining that a toy
or other children's article presents an electrical, mechanical, or
thermal hazard. As provided in section 3(f), this proceeding began with
an ANPR. 64 FR 38387 (1999). After considering the comment submitted in
response to the ANPR, the Commission is now issuing a proposed rule and
a preliminary regulatory analysis in accordance with section 3(h) of
the FHSA. The Commission will then consider the comments received in
response to the proposed rule and decide whether to issue a final rule
and a final regulatory analysis. 15 U.S.C. 1262(i)(1). Before the
Commission can issue a final rule it must find (1) if an applicable
voluntary standard has been adopted and implemented, that compliance
with the voluntary standard is not likely to adequately reduce the risk
of injury, or compliance with the voluntary standard is not likely to
be substantial; (2) that benefits expected from the regulation bear a
reasonable relationship to its costs; and (3) that the regulation
imposes the least burdensome alternative that would adequately reduce
the risk of injury. Id. 1261(i)(2).
C. The Product
Dive sticks are used in swimming pools for underwater retrieval
activities, such as retrieval games and swimming instruction. They are
made of rigid plastic. They are often cylindrical in shape, typically
ten inches or less in length with a diameter one inch or less, but some
have novelty shapes such as shark silhouettes. They are or can be
weighted so that when dropped into water they sink and stand upright on
the bottom. Dive sticks are sold under a variety of names such as dive
sticks,
[[Page 44704]]
diving sticks, fish sticks, sticks, and batons. The Commission believes
that the characteristics most important to creating the risk of
impalement injury are that dive sticks (1) are rigid, (2) submerge and
come to rest at the bottom of a pool of water, and (3) stand upright
once submerged. [5]
Before the June 1999 recalls, dive sticks were usually sold in sets
of 3 to 6 sticks. They were often sold as part of a package that
contained other toys, such as dive disks, eggs, and rings (e.g., a
package may include 3 dive sticks, 3 dive rings, and 3 dive disks).
Retail prices usually ranged from $4 to $7 per set or about $1 per
individual stick. Retail prices were almost always less than $10, even
when sold with other products such as disks, rings, and snorkels. [8]
An estimated 4 to 5 million dive sticks were sold in both 1997 and
1998. Altogether, about 20 million dive sticks have been sold since
1990. Sales of dive sticks increased substantially during the 1990's.
About 1 million households may have owned dive sticks during any given
year. [8]
In 1997, retail sales of water/pool/sand toys exceeded $450
million. Since dive sticks retail for approximately $1 per stick, dive
sticks likely made up less than 1.0 percent of retail sales in this
category. Before the June 1999 recalls, the CPSC staff identified at
least 15 firms that manufactured or imported dive sticks into the
United States. Most of the importers obtained their products from
China, Hong Kong, or Taiwan. Since the product is inexpensive and
simple to manufacture, it is relatively easy for firms to enter or
leave the dive stick market. Therefore, firms that have not supplied
dive sticks in the past, and were not part of the June 1999 recalls,
could begin or renew producing or supplying dive sticks. [8]
D. The Risk of Injury
1. Description of Injury. Impalement injuries have occurred when a
child accidently fell or jumped buttocks-first into shallow water and
landed on a dive stick. Serious rectal or vaginal injuries can result.
Less serious injuries such as facial and eye injuries are also possible
when a child attempts to retrieve a dive stick under the water. [2]
Falls on vertical objects may result in traumatic injuries to the
perineum. The severity of injuries depends on the degree of penetration
by the object. This in turn is dependent on the force of impact and the
physical properties of the dive stick (size and surface
characteristics). The injuries could range from laceration of the
rectum and sphincter, to puncture wounds and tears of the colon. High
impact forces may also cause injuries to the vulva, vaginal canal, and
blood vessels beneath the perineal skin in females. In males, such
impacts may cause perforation injuries to the genitalia, urethra,
ureter and bladder. All these types of perforation and impalement
injuries in males and females require hospitalization and surgery.
Because of the nature of the area, the main complication after
perineum injuries is lesion infection, which may lead to abscess and
possible sepsis in extreme cases. To avoid subsequent septic
complications, surgery may be necessary. Perineal injuries (with or
without rectal injury) often require fecal diversion (proximal
colostomy), wound drainage, and the use of a broad-spectrum antibiotic
in pre- and post-operative stages. The damage caused by deep
penetration into the rectal or vaginal area may have devastating
effects on a child's health. In addition to long-term physiological
effects, these types of injuries have the potential to cause long-
lasting emotional trauma.
2. Impalement Injury data. As of October 1999, the Commission is
aware of eight confirmed impalement injuries involving submerged
vertically-standing dive sticks, including three since the Commission
issued its ANPR. All the victims were children ranging in age from five
to nine years old. [2]
Four females (ages 7 to 9) sustained injuries when the dive stick
penetrated the vagina. One male (age 7) and two females (ages 5 and 6)
suffered injuries when the dive stick penetrated the rectum. In the
remaining incident, a seven year-old female received external
lacerations around the rectum after landing on a dive stick. Medical
attention was sought after each incident, and five of the injuries
required surgery to address multiple internal and external injuries.
[2]
These eight incidents involved vertical-standing dive sticks. The
products were cylindrical batons, approximately 7\7/8\ to 8\5/8\ inches
long and \7/8\ to one inch in diameter.\2\ One of the dive sticks was
white in color, another was blue; the colors of the remaining dive
sticks are unknown. In one incident, it was reported that the victim
could not see the dive stick because of the white color and the faded
blue numbers. [2]
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\2\ Two incident reports approximated the length between 6 and 8
inches; however, the products were not available for measurement.
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The victims in seven of these eight confirmed incidents were
injured while playing in shallow depths of water. Of these, four
occurred in small wading pools with water levels between 12 and 24
inches. Of the remaining three incidents, one occurred in a spa with
unknown water depth, one occurred in a pool measuring three feet in
height with approximately 27 inches of water, and the final incident
occurred in a bathtub with approximately 6 inches of water. The eighth
incident reportedly took place in a pool; however, neither the type of
pool nor the water depth is known.\3\ [2]
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\3\ A ninth unconfirmed incident was reported to CPSC, but many
details of the incident remain unclear.
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The July ANPR provided summaries of impalement incidents reported
at that time. Below are summaries of the impalement injuries reported
since the ANPR was published.
a. June 9, 1999--The five year-old female victim was playing in an
inflatable wading pool. The victim was jumping up and down in the pool
when she slipped and fell directly on top of one of four vertically
standing dive sticks in the pool. The victim was impaled rectally by
the dive stick. She was hospitalized overnight for observation. She was
treated for an anal tear and an internal laceration to her rectum.
b. April 1999--The seven year-old female was taking a bath under
the supervision of her mother. The dive stick was in the bathtub,
standing vertically in the water. The child stood up to lather her
legs, sat back down to rinse off and sat on a dive stick which went
into her vagina. The victim was hospitalized overnight and underwent
surgery for vaginal lacerations. Long term prognosis was unavailable.
[2]
3. Non-impalement injury data. In addition to genital and rectal
injuries, the Commission received reports of four injuries to other
body parts that occurred when the victim submerged onto the vertical-
standing dive stick. The injuries occurred when the children attempted
to retrieve the dive sticks from the bottom of the pool. A female
victim, age 6, received a facial laceration when she stuck her face in
the water and contacted the product. One boy, age 8, dived head first
into the pool and hit his forehead on the product. The third victim, a
7 year-old male, jumped into the pool feet first and punctured his foot
on the sharp edge of the dive stick after it broke from the initial
contact. The fourth victim, a 9 year-old male, lacerated his back on
the sharp edge of a dive stick when he dived into the pool to retrieve
the product. [2]
The Commission has also received reports of six incidents of
victims struck by a thrown dive stick. Three of the
[[Page 44705]]
injuries were facial lacerations, two resulted in an eye injury and one
child broke a tooth. Two other children were reportedly injured when
they fell while carrying dive sticks. [2]
E. The Proposed Ban
The Commission is proposing to ban dive sticks with certain
hazardous characteristics. Although voluntary recalls have removed
most, if not all, of these products from the market for the present
time, the Commission is concerned that, without a rule banning them,
they could reappear on the market.
The proposed rule would ban dive sticks that (1) are rigid, (2)
submerge to the bottom of a pool of water, and (3) stand upright in
water. After considering the reported impalement injuries, the
Commission believes that these are the essential characteristics that
create the impalement hazard. Dive sticks and similar articles that do
not have these characteristics, as well as dive rings and dive discs,
would still be allowed.
All dive stick impalement incidents and other rectal or vaginal
impalement cases reported in the medical literature involved objects
that were rigid. The staff is not aware of any impalement injuries to
the perineum that involved a flexible object. In order to prevent
serious injuries, the dive stick should be of sufficient flexibility
that it would bend to a degree that prevents penetration when impact
occurs with the perineal area. The staff developed a test to
distinguish dive sticks that are sufficiently flexible so as to
effectively limit the potential for serious impalement injury.
The Commission believes that it is appropriate to base a rigidity
test on a fraction of the weight of a child who is first beginning to
walk. Although the youngest child involved in a reported impalement
incident was five years old, if a child can walk independently it is
possible that he or she might be playing in a shallow body of water and
fall onto a dive stick in the same manner that occurred in the
impalement incidents. Children begin to walk on their own at about
11\1/2\ months. Therefore, the test uses the weight of a 10 to 12
month-old child. The weight of a 5th percentile 10 to 12 month-old
child is 16.5 pounds (7.5 kg). The Commission believes that a failure
criterion of 5-lbf (approximately \1/3\ of the weight of a 10 to 12
month-old child) will provide a margin of safety to effectively limit
the potential for a serious impalement injury.
The proposed performance test applies a gradual compression load to
the top of the dive stick for a period of 40 seconds. If the force
reaches 5 lbf the dive stick is too rigid and fails the test. The
Commission is aware that some manufacturers are developing dive sticks
that are constructed of flexible material that would pass this test.
The Commission believes that such flexible articles would not pose an
impalement hazard. [5, 7]
All confirmed impalement injuries occurred with dive sticks that
had submerged to the bottom of a pool of water. It is unlikely that a
child falling onto a dive stick floating on the water would suffer
impalement. A floating dive stick is likely to move away before the
child's body strikes the bottom of the pool. [3, 6]
The vertical orientation of a submerged dive stick is a key factor
in these impalement incidents. The Commission's Human Factors staff
examined the reported incidents and concluded that when force is
applied in line with the long axis of the dive sticks (as it is when a
child lands on it in a vertical position), the sticks do not move.
``Because the stick is braced against the floor, the impact causes a
relatively rapid deceleration of the body part which is struck, with
the force of the impact concentrated on the small area at the end of
the stick.'' The Human Factors staff believes that the potential for
impalement injury declines as the angle of impact moves away from the
vertical. However, the orientation of a child landing on a stick is
variable, and impact at precisely the wrong angle may reorient the
stick perpendicular to the bottom surface. Thus, slight deviations of
the stick's position from vertical may not be adequate to avoid
impalement. If the angle of the stick is sufficiently away from
vertical, both impact in line with the axis and impact at an angle to
the axis would tend to move the stick and limit the possibility of
impalement. The Commission believes that a position at least 45 degrees
from vertical would provide a sufficient safety margin to effectively
limit the potential for impalement injuries. [3, 6]
F. Alternatives
The Commission has considered other alternatives to reduce the risk
of impalement injury related to dive sticks. However, as discussed
below, the Commission does not believe at this point that any of these
would adequately reduce the risk of injury.
Voluntary Recalls. Before beginning this proceeding the Commission
negotiated voluntary recalls with many companies that manufactured or
imported dive sticks, and many other firms voluntarily removed their
dive sticks from the market. One alternative to the banning rule is for
the Commission to continue pursuing recalls on a case-by-case basis.
However, it appears that the impalement hazard is present in all dive
sticks that have the hazardous characteristics the staff has
identified. The hazard is not limited to one particular model or brand.
Therefore, a rule banning all dive sticks with the identified
characteristics is more efficient. While the recalls have removed
hazardous dive sticks from the market for now, proceeding with future
recalls in the absence of a banning rule would allow hazardous dive
sticks to return to the market until the Commission had a chance to act
on the new dive sticks. [8]
Voluntary Standard. Currently, there is no applicable voluntary
standard, nor was one submitted in response to the ANPR. Moreover,
because dive sticks are relatively inexpensive and easy to manufacture,
compliance with a voluntary standard may be low.[8]
Labeling. One alternative to a banning rule would be to require
cautionary labeling for dive sticks. Most dive sticks carry some
warnings regarding small parts (in reference to the end caps); use only
under the supervision of a competent swimmer, and/or against diving in
shallow water. In order for a label warning of the impalement hazard to
be fully effective, consumers must notice, read, and understand it,
then comply with it 100% of the time. People are less likely to comply
with a warning if the connection between the product and the injury
potential is not clear, if they cannot imagine what the injury is, or
if they do not fully understand how to avoid the hazard. As the
impalement hazard presented by dive sticks is not apparent, the label
would have to convey clearly that severe rectal or genital injuries can
result if children jump into the water and land on the sticks. Further,
a ``safe'' water depth would have to be identified to give consumers
adequate information on which to base their purchasing decision. A
label that meets these criteria could have a significant impact at the
point of purchase, but would need to be reinforced with an on-product
warning. It would be difficult, however, to develop a label that is
highly noticeable and easy to read because of the small and typically
curved surface area of the dive stick. Moreover, a label may not last
the life of the product because it is used in water. In contrast, the
effectiveness of banning hazardous dive sticks is not in question,
because the impalement hazard would be minimized or eliminated.[3,8]
[[Page 44706]]
Change in Scope. A final alternative considered was to modify the
scope of the rule so that it would apply only to pre-weighted dive
sticks. However, it is easy to add weight to certain unweighted dive
sticks with water, sand or similar materials so that they too can stand
vertically at the bottom of a pool. Because such unweighted dive sticks
can pose the same risk as pre-weighted ones, the Commission is
including them in the rule.
G. Preliminary Regulatory Analysis
Introduction
The Commission has preliminarily determined to ban dive sticks with
certain hazardous characteristics. Section 3(h) of the FHSA requires
the Commission to prepare a preliminary regulatory analysis containing
a preliminary description of the potential benefits and costs of the
proposed rule, including any benefits or costs that cannot be
quantified in monetary terms; an identification of those likely to be
affected; discussion of existing or developing standards submitted in
response to the ANPR; and a description of reasonable alternatives. 15
U.S.C. 1261(h). The following discussion addresses these
requirements.[8]
Potential Benefits of a Rule Banning Certain Dive Sticks
The purpose of the proposed rule is to prevent serious impalement
injuries that can result when children jump or fall on dive sticks that
are being used in shallow water. The benefits of the proposed rule
would therefore be the resulting reduction in injuries.
The CPSC is aware of eight confirmed impalement injuries (to the
perineum) since 1990 involving dive sticks that were standing upright
on the bottom of a pool.\4\ All of the victims received medical
attention after the injury and at least five required surgery. In one
case a temporary colostomy was performed. No fatalities are known to
CPSC.
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\4\ An additional incident was reported to CPSC, but there are
some questions surrounding the nature of the incident and whether or
not it is the result of the hazard that the rule under consideration
would address.
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The societal costs of these eight impalement injuries, based on
estimates from the CPSC Injury Cost Model, range from about $8,000 for
injuries that do not require hospitalization to about $90,000 for
injuries that do require hospitalization. These estimates are based on
the costs of injuries involving punctures or lacerations to the
victims' lower trunk or pubic region for children 5 to 11 years-of-age.
These cost estimates include the cost of medical treatment, pain and
suffering, and legal and liability costs.
If we assume that the only cases that required hospitalization were
the five incidents that required surgery, the total societal costs of
the known incidents is about $474,000 (5 cases x $90,000 and 3 cases
x $8,000) or an average of $47,400 a year since 1990. This is a low
estimate of the total societal cost of dive stick impalement injuries
because it is based only on the cases known to CPSC. There may have
been other injuries of which CPSC is not aware.
The potential benefit of a standard that would prevent dive stick
impalement injuries is the expected societal costs of the injuries
prevented. To compare the benefits of a proposed rule to the costs
(which will be discussed in the next section) it is useful to estimate
the expected societal costs of dive stick injuries (and hence, the
potential benefits) on a per dive stick in use basis.
The average number of dive sticks in use since 1990 probably ranged
from about 3 million units (assuming a one-year product life) to about
5.5 million units (assuming a 4-year product life). Therefore, the
annual societal costs of dive stick injuries may range from about one
cent per dive stick in use ($47,400 <divide> 5.5 million sticks) to
about 2 cents per dive stick in use ($47,400 <divide> 3 million
sticks).
Since dive sticks may last for one to four years, the potential
benefits of the rule per dive stick (if it eliminates all impalements)
may range from about 2 cents per dive stick ($0.02 x 1 year) to about
4 cents per dive stick ($0.01 x 4 years). The potential benefits
would be higher if there have been dive stick injuries of which the
Commission is not aware. Therefore, the 2 to 4 cents per dive stick
probably represents a minimum estimate of the potential benefits, if
all injuries can be prevented.
The benefits would accrue primarily to households with children,
since all victims have been 11 years old or younger. However, since
medical costs are generally pooled through insurance, the monetary
benefits of the proposed rule would be diffused through society as a
whole.
Potential Costs of the Proposed Rule
If the rule under consideration is adopted, manufacturers that
continue to produce and sell dive sticks will have to modify their
product to conform to the requirements of the proposed rule. Some
manufacturers may be able to continue using the molds and production
processes they use now, but with a softer or more flexible plastic.
Other manufacturers may be able to adjust the weight or center of
gravity of the dive sticks so that they do not stand upright when
submerged.
The costs of these alternatives are not known, but the CPSC staff
believes that these changes can be made with minimal impact on tooling
and other production processes. Consequently, it seems reasonably
likely that when the incremental costs of the proposed rule are spread
over large production runs, the cost will be no more than the benefits
of the rule--2 to 4 cents per dive stick manufactured.
Moreover, the production of dive sticks does not require much in
the way of specialized facilities or dedicated equipment, other than
certain product molds. Therefore, even if a manufacturer opted not to
redesign the dive sticks, the cost to the manufacturer would be limited
to the premature disposal of certain dedicated equipment, such as
molds. However, for the most part, the manufacturers' facilities and
equipment could be used for manufacturing other products.
The proposed rule could reduce consumer utility if consumers prefer
the banned dive sticks to the substitute products (i.e., dive sticks
and eggs that do not stand upright, dive rings, dive disks, and so on).
However, because these substitute products serve essentially the same
purposes and would cost about the same, negative impact on consumer
utility, if any, is unlikely to be significant.
Existing or Developing Standards Submitted in Response to the ANPR
No existing voluntary standards were submitted in response to the
ANPR. Nor were any proposals to develop such a standard submitted to
the Commission. As stated above, the Commission is not aware of any
voluntary standards applicable to dive sticks.
Alternatives Considered
As discussed above, the Commission considered the other
alternatives of pursuing voluntary recalls, following a voluntary
standard, requiring labeling, or changing the scope. Because the hazard
affects all dive sticks with the hazardous characteristics the
Commission has identified, a banning rule would be more effective than
case-by-case recalls. No applicable voluntary standard exists and
compliance may be low if one did. As discussed above, labeling could
help reduce the risk of injuries from dive sticks, but would be less
effective than a banning rule. Finally, the Commission is including
non-weighted dive sticks that can be weighted because they pose the
same risk of injury as weighted ones.
[[Page 44707]]
H. Regulatory Flexibility Certification
Under the Regulatory Flexibility Act (``RFA''), when an agency
issues a proposed rule it generally must prepare an initial regulatory
flexibility analysis describing the impact the proposed rule is
expected to have on small entities. 5 U.S.C. 603. The RFA does not
require a regulatory flexibility analysis if the head of the agency
certifies that the rule will not have a significant effect on a
substantial number of small entities. 5 U.S.C. 605(b).
Most of the firms that manufactured or imported dive sticks are
small businesses according to the Small Business Administration
guidelines since they have fewer than 100 employees for importers or
500 employees for manufacturers. However, staff analysis suggests that
the rule is unlikely to have a significant effect on any businesses,
large or small.[8]
The Commission has previously worked with companies to recall
hazardous dive sticks. Most manufacturers removed their dive sticks
from the market in response to the recalls. Some manufacturers have
already taken steps to redesign their products. If the redesigned
products conform to the proposed rule, the manufacturers would not
incur any additional costs.[8]
In addition, as discussed above, the costs of the rule are likely
to be small. To the extent that the costs of the product increase, they
are likely to be passed on to consumers in the form of higher retail
prices.[8]
Finally, dive sticks probably account for only a small percentage
of any individual firm's sales. Several dive stick manufacturers market
various types of pool or other toys. Others have additional product
lines such as pool supplies and equipment. Additionally, most of the
firms that manufactured or imported dive sticks also distribute similar
toys (such as dive rings and disks and certain dive eggs that do not
rest vertically on the bottom) that would not be covered by the ban. If
firms stopped producing and selling dive sticks, sales of these
substitute products may increase, offsetting any loss due to a ban on
dive sticks.[8]
For the reasons stated above, the Commission certifies that the
proposed rule banning dive sticks would not have a significant effect
on a substantial number of small entities.
I. Environmental Considerations
Pursuant to the National Environmental Policy Act, and in
accordance with the Council on Environmental Quality regulations and
CPSC procedures for environmental review, the Commission has assessed
the possible environmental effects associated with the proposed rule
banning certain dive sticks.
The Commission's regulations state that rules providing design or
performance requirements for products normally have little or no
potential for affecting the human environment. 16 CFR 1021.5(c)(1).
Nothing in this proposed rule alters that expectation. Therefore,
because the rule would have no adverse effect on the environment,
neither an environmental assessment nor an environmental impact
statement is required.[8]
J. Executive Orders
According to Executive Order 12988 (February 5, 1996), agencies
must state the preemptive effect, if any, of new regulations.
The FHSA provides that, generally, if the Commission issues a
banning rule under section 2(q) of the FHSA to protect against a risk
of illness or injury associated with a hazardous substance, ``no State
or political subdivision of a State may establish or continue in effect
a requirement applicable to such substance and designed to protect
against the same risk of illness or injury unless such requirement is
identical to the requirement established under such regulations.'' 15
U.S.C. 1261n(b)(1)(B). Upon application to the Commission, a State or
local standard may be excepted from this preemptive effect if the State
or local standard (1) provides a higher degree of protection from the
risk of injury or illness than the FHSA standard and (2) does not
unduly burden interstate commerce. In addition, the Federal government,
or a State or local government, may establish and continue in effect a
non-identical requirement that provides a higher degree of protection
than the FHSA requirement for the hazardous substance for the Federal,
State or local government's own use. 15 U.S.C. 1261n(b)(2).
Thus, with the exceptions noted above, the proposed rule banning
certain dive sticks would preempt non-identical state or local
requirements applicable to dive sticks designed to protect against the
same risk of injury.
The Commission has also evaluated this proposed rule in light of
the principles stated in Executive Order 13132 concerning federalism,
even though that Order does not apply to independent regulatory
agencies such as CPSC. The Commission does not expect that the proposed
rule will have any substantial direct effects on the States, the
relationship between the national government and the States, or the
distribution of power and responsibilities among various levels of
government.
K. Effective Date
The rule would become effective 30 days from publication of a final
rule in the Federal Register and would apply to dive sticks entering
the chain of distribution on or after that date. The Commission
believes a 30-day effective date is appropriate because (1) due to the
1999 recalls, few, if any, dive sticks should be currently on the
market; (2) redesigning products to comply with the rule should be
fairly simple; and (3) substitute products are readily available.[1,8]
L. Proposed Findings
For the Commission to issue a rule under section 2(q)(1) of the
FHSA classifying a substance or article as a banned hazardous
substance, the Commission must make certain findings and include these
findings in the regulation. 15 U.S.C. 1262(i)(2). The Commission
proposes the following findings.
Voluntary standard. The FHSA requires the Commission to make
certain findings concerning compliance with and adequacy of a voluntary
standard if a relevant voluntary standard has been adopted and
implemented. Id. The Commission is not aware of any voluntary standards
addressing the risk of injury posed by dive sticks. Therefore, no
findings concerning voluntary standards are necessary.
Relationship of benefits to costs. The FHSA requires the Commission
to find that the benefits expected from a regulation bear a reasonable
relationship to its costs. The Commission estimates the potential
benefits of removing hazardous dive sticks from the market to be 2 to 4
cents per dive stick. With the availability of substitutes and the
expected low cost of modifying dive sticks to conform to the proposed
rule, the Commission anticipates that necessary changes will be
minimal. The Commission estimates that the costs of the rule will be no
more than 2 to 4 cents per dive stick. Thus, the Commission proposes to
find that there is a reasonable relationship between the expected
benefits of the rule and its costs.
Least burdensome requirement. The FHSA requires the Commission to
find that a regulation imposes the least burdensome alternative that
would adequately reduce the risk of injury. Id. The Commission
considered pursuing voluntary recalls, following a voluntary standard,
or requiring labeling. A
[[Page 44708]]
banning rule would be more effective than case-by-case recalls because
the impalement hazard affects all dive sticks, not a specific brand or
model. Awaiting recalls would allow these hazardous items on the market
until the Commission obtained recalls. As explained above, no
applicable voluntary standard exists, and compliance may be low if one
did. Although labeling could help reduce the risk of injuries from dive
sticks, it would be less effective than a banning rule. It may be
difficult for a label to convey the necessary information at the time
of use. Thus, the Commission proposes that a ban of dive sticks with
the hazardous characteristics it has identified is the least burdensome
alternative that would adequately reduce the risk of injury.
Conclusion
For the reasons stated above, the Commission preliminarily
concludes that the dive sticks described in the proposed rule are
hazardous substances under section 2(f)(1)(D) of the FHSA. They are
intended for children and present a mechanical hazard because their
design or manufacture presents an unreasonable risk of injury. 15
U.S.C. 1261(s).
List of Subjects in 16 CFR Part 1500
Consumer protection, Hazardous materials, Hazardous substances,
Imports, Infants and children, Labeling, Law enforcement, and Toys.
Therefore, the Commission proposes to amend title 16 of the Code of
Federal Regulations as follows:
PART 1500--HAZARDOUS SUBSTANCES AND ARTICLES: ADMINISTRATION AND
ENFORCEMENT REGULATIONS
1. The authority for part 1500 continues to read as follows:
Authority: 15 U.S.C. 1261-1278.
2. Section 1500.18 is amended by adding a new paragraph (a)(19) to
read as follows:
Sec. 1500.18 Banned toys and other banned articles intended for use by
children.
(a) * * *
(19) Dive sticks, and other similar articles, that are used in
swimming pools or other water environments for such activities as
underwater retrieval games or swimming instruction, and which, when
placed in the water, submerge and rest at the bottom of the pool. This
includes products that are pre-weighted to sink to the bottom and
products that are designed to allow the user to adjust the weight. Dive
sticks and similar articles that come to rest underwater at an angle
greater than 45 degrees from vertical when measured under the test at
Sec. 1500.86(a)(7) and dive sticks and similar articles that maintain a
compressive force of less than 5-lbf under the test at
Sec. 1500.86(a)(8) are exempt from this banning rule. Articles that
have a continuous circular shape, such as dive rings and dive disks are
also exempt.
3. Section 1500.86 is amended by adding new paragraphs (a)(7) and
(a)(8) to read as follows:
Sec. 1500.86 Exemptions from classification as a banned toy or other
banned article for use by children.
(a) * * *
(7) Dive sticks and similar articles described in
Sec. 1500.18(a)(19) that come to rest at the bottom of a container of
water in a position in which the long axis of the article is greater
than 45 degrees from vertical when measured in accordance with the
following test method:
(i) Test equipment. (A) A container that is filled with tap water
to a depth at least 3 inches [76 mm] greater than the longest dimension
of the dive stick. The container shall: be sufficiently wide to allow
the dive stick to lie along the bottom with its long axis in a
horizontal position; have clear side walls to permit observation of the
dive stick under water; and be placed on a level surface and have a
flat bottom.
(B) A protractor or other suitable angle measurement device that
has an indicator for 45 degrees from vertical.
(ii) Testing procedure. (A) If the dive stick is sold such that the
consumer is required to attach an additional component(s) to the dive
stick, then the product shall be tested both with and without the
attachment(s).
(B) From just above the water surface, drop the dive stick into the
container.
(C) Let the dive stick sink and come to rest at the bottom of the
container. If the dive stick is designed so that the weight can be
adjusted by adding water or other substance, adjust the weight so that
the dive stick sinks and comes to rest with its long axis positioned as
close to vertical as possible.
(D) Align the angle measurement device alongside the dive stick
underwater and wait for the dive stick to come to rest if there is any
water disturbance. Determine whether the long axis of the dive stick is
greater than or less than 45 degrees from vertical.
(8) Dive sticks and similar articles described in
Sec. 1500.18(a)(19) in which the maximum force measured in the
following test method is less than 5-lbf [22N]. The test shall be
conducted in the ambient environment of the laboratory and not under
water.
(i) Test equipment. (A) A compression rig that has a force gauge or
equivalent device that is calibrated for force measurements within a
minimum range of 0 to 5 lbf [0-22 N] and with an accuracy of
<plus-minus>0.1 lbf [<plus-minus>0.44 N] or better. The test rig shall
have a system to guide this force application in the vertical direction
and shall have a means to adjust the rate of load application.
(B) Compression disk--the loading device that is attached to the
force gauge shall be a rigid metal disk with a minimum diameter of
1.125 inches [29 mm].
(C) Vise or other clamping device.
(ii) Testing procedure. (A) Position the bottom of the dive stick
in the clamping device so that the longest axis of the dive stick is
vertical. The bottom end of the dive stick is the end that sinks to the
bottom of a pool of water. Secure the bottom of the dive stick in the
clamp such that the clamping mechanism covers no more than the bottom
\1/2\ inch [13 mm] of the dive stick.
(B) Apply a downward force at a rate of 0.05 in/sec
(<plus-minus>0.01 in/sec) [1.3 mm.sec <plus-minus>0.3 mm/sec] at the
top of the dive stick with the compression disk positioned so that the
plane of the disk contact surface is perpendicular to the long axis of
the dive stick.
(C) Apply the load for a period of 40 seconds or until the maximum
recorded force exceeds 5-lbf [22 N].
(D) Record the maximum force that was measured during the test.
Dated: July 11, 2000.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
List of Relevant Documents
1. Briefing memorandum from Ronald Medford, AED, Office of
Hazard Identification and Reduction and Scott Heh, Project Manager,
Directorate for Engineering Sciences, to the Commission, ``Dive
Sticks,'' June 8, 2000.
2. Memorandum from Debra Sweet, Directorate for Epidemiology, to
Scott Heh, Project Manager, ``Injury Data Related to Dive Sticks,''
March 21, 2000.
3. Memorandum from Catherine A. Sedney, Division of Human
Factors, to Scott Heh, Project Manager, ``Human Factors Assessment
of Dive Sticks,'' April 10, 2000.
4. Comment Received in Response to the ANPR, Steve Hutchison,
Department of Fair Trading, NSW Consumer Protection Agency,
Australia, dated August 30, 1999.
5. Memorandum from Scott Heh, Project Manager, to File,
``Banning Definition and Test Methods for Dive Sticks,'' May 3,
2000.
6. Memorandum from Catherine A. Sedney, Division of Human
Factors, to Scott Heh, Project Manager, ``Prevention of
[[Page 44709]]
Impalement Injuries: Specification of the Position of Dive Sticks in
Water,'' January 27, 2000.
7. Memorandum from Suad Nakamura, Ph.D., Physiologist, Division
of Health Sciences, and Scott Heh, Mechanical Engineer, Directorate
for Engineering Sciences, to File, ``Development of an Exemption for
Non-rigid Dive Sticks,'' May 3, 2000.
8. Memorandum from Robert Franklin, Economist, Directorate for
Economic Analysis, to Scott Heh, Project Manager, ``Preliminary
Regulatory Analysis: Dive Sticks,'' May 18, 2000.
[FR Doc. 00-18058 Filed 7-18-00; 8:45 am]
BILLING CODE 6355-01-P