[Federal Register Volume 60, Number 107 (Monday, June 5, 1995)]
[Proposed Rules]
[Pages 29518-29520]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13597]



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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1307


Plastic Buckets; Withdrawal of Advance Notice of Proposed 
Rulemaking

AGENCY: Consumer Product Safety Commission.

ACTION: Withdrawal of advance notice of proposed rulemaking.

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SUMMARY: The Consumer Product Safety Commission has voted to terminate 
a proceeding to develop a rule addressing risks of injury and death 
associated with certain 5 gallon plastic buckets.1 The Commission 
initiated the proceeding when it published an advance notice of 
proposed rulemaking (``ANPR'') on July 8, 1994. 59 FR 35058. On 
February 8, 1995, the Commission voted to terminate the proceeding and 
withdraw the ANPR. As explained below, the Commission determined that 
based on information available at this time, rulemaking is not 
warranted.

    \1\The Commission voted to issue this termination notice with 
Chairman Ann Brown and Commissioner Mary Gall voting in favor of 
issuing the notice. Commissioner Thomas Moore abstained from voting 
on this implementing notice because he did not participate in the 
previous decision to withdraw the ANPR.

FOR FURTHER INFORMATION CONTACT: Celestine Trainor, Directorate for 
Epidemiology, Division of Human Factors, Consumer Product Safety 
Commission, Washington, D.C. 20207; telephone (301) 504-0468.

SUPPLEMENTARY INFORMATION:

A. Background

    In July 1989, the Commission first learned of a drowning hazard 
associated with certain large buckets or bucket-like containers. These 
drownings occurred when a child leaned over the bucket and fell in head 
first. Children have drowned in a very small amount of liquid. Because 
of their shape, size, and sturdiness, the buckets do not tip over, 
[[Page 29519]] nor can toddlers who have fallen into the buckets 
extricate themselves.
    Upon learning of such incidents, the Commission issued a Safety 
Alert in July 1989 warning consumers of the potential drowning hazard 
associated with this product. The Commission also contacted the major 
trade associations representing manufacturers and fillers of buckets. 
These trade associations formed the Coalition for Container Safety and 
developed an information and education program that included 
distribution to consumers of free self-adhesive warning labels and 
production of a video news release.
    The Commission staff also worked with ASTM subcommittee F15.31 on 
voluntary standards for 5-gallon buckets. In 1993, ASTM approved an 
emergency standard for labeling of buckets to address the drowning 
hazard, and a final ASTM standard for labeling is in process. In 
addition, an ASTM subcommittee task group pursued the possibility of 
developing a draft performance standard. After considering various 
options, subcommittee members stated at a March 17, 1994 meeting that 
they did not believe a performance standard was feasible and that they 
would continue to vote against it. Subsequent subcommittee and task 
force meetings did not progress any further toward a voluntary 
performance standard.
    On July 8, 1994, the Commission published an ANPR explaining that 
it was beginning a proceeding to address the hazard of drowning 
associated with 5-gallon plastic buckets and that a range of options 
were open to the Commission to address this hazard. 59 FR 35058, 35062.

B. Statutory Authority

    The Commission initiated the rulemaking proceeding under the 
Consumer Product Safety Act (``CPSA''). 15 U.S.C. 2051-2084. Sections 
7, 8 and 9 of the CPSA set forth the requirements that the Commission 
must follow to issue safety regulations. 15 U.S.C. 2056, 2057 and 2058.
    The July 8, 1994 ANPR was the first step required in the rulemaking 
process. In accordance with section 9(a) of the CPSA, the ANPR 
described the product, explained the nature of the risk of injury, 
summarized the possible regulatory alternatives, and discussed existing 
relevant standards. The ANPR also invited interested persons to submit 
(i) comments concerning the risk of injury; (ii) an existing standard 
or portion of a standard to be developed as a proposed rule; and (iii) 
a statement of intention to modify or develop a voluntary standard that 
would address the risk of injury associated with plastic buckets. 15 
U.S.C. 2058(a). The Commission received 84 comments in response to the 
ANPR.(2)2

    \2\Numbers in parentheses refer to documents listed at the end 
of this notice.
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C. The Product
    As explained in the ANPR, this proceeding covers certain buckets, 
referred to as ``5-gallon plastic buckets.'' They are open-head buckets 
with a rated capacity of 4\1/2\ to 5\1/2\ gallons and are generally 14 
inches high and 10.25 to 11.25 inches in diameter. They have 
practically straight sides and are manufactured of high density 
polyethylene. These buckets are used to package and transport such 
industrial, commercial and consumer products as chemicals, cleaning 
substances, foods, paints and construction materials. Consumers obtain 
the buckets when they purchase consumer goods, like paint or detergent, 
packaged in the buckets, when they carry the buckets away from job 
sites, or when they purchase them empty. The ANPR described the bucket 
industry based on a study conducted by the Freedonia Group, Inc. That 
study estimated that by 1997, 175 million open-head plastic buckets 
will be produced annually.(1)

D. Risks of Injury and Death

    Incident scenarios usually involved an unwitnessed event when a 
child leaned over the bucket and fell in head first.
    Of the 112 fatal incidents which CPSC staff investigated, the 
location of the caregiver could be determined in 93 of the cases. In 91 
of these incidents, the caregiver was not in the same room with the 
victim.(12)
    Of the 19 investigations of ``near-miss'' situations where the 
victims survived, the location of the caregiver was known in 16 of 
these cases. In 13 of these incidents, the caregiver was not in the 
same room with the victim.(12)
    Between January 1984 and January 1995, the Commission has received 
reports of 247 deaths and 32 non-fatal incidents associated with 5-
gallon buckets. The estimated annual average number of deaths for the 
years 1990, 1991, and 1992, is about 36, a slight reduction from the 
annual average estimate of about 40 for the years 1990 and 1991. The 
ages of the victims ranged from 7 to 24 months, with a median age of 11 
months. Sixty percent of the victims were male. Height and weight of 
the victims, when reported, averaged about 28 inches and 22 pounds, 
respectively. Where race/ethnicity was reported, minority groups 
accounted for about 70% of those incidents.(4)
    All but one of the incidents in which the bucket material was 
reported involved plastic buckets--the other was metal. In 35 
incidents, the bucket material was not known. In cases where the 
buckets' measurements were known, over 90% were 5-gallon buckets, 
usually 14 to 15 inches high, with diameters of about 12 inches. The 
average height of the liquid in the buckets was about 6 inches.(4)

E. Existing Standards

    As discussed above, ASTM formed subcommittee F15.31 to address 
hazards associated with buckets. In July 1993, ASTM approved ES 26-93, 
an emergency labeling standard for 5-gallon plastic buckets. The 
standard requires that 5-gallon open-head buckets have a specified 
label at the time they are sold or delivered to the end user or, if the 
bucket is intended to be sold empty, when shipped to a retailer for 
sale. The label must be difficult to remove and must not be covered, 
obstructed or removed by distributors or retailers. The placement, 
size, layout, and wording of the label are specified. The label 
contains a pictorial along with the words: ``Children can fall into 
bucket and drown'' followed by the words ``Keep children away from 
bucket with even a small amount of liquid.'' The label may be modified 
to include additional languages.(8) ASTM is in the process of making 
this a final standard. The ASTM subcommittee also examined the 
possibility of a performance standard, but as of this time, has not 
developed one.(1)
    In addition, as discussed in the ANPR, California has a law, in 
effect since September 1993, that requires a warning label on 5-gallon 
buckets intended for use, sale, or distribution within the state. Also, 
as discussed in the ANPR, there are several standards that establish 
criteria for handling and shipping of buckets, but these standards do 
not address the child-drowning hazard.(1)

F. Industry's Labeling, Information and Education Campaign

    Following publication of the ANPR, industry substantially increased 
its efforts with respect to labeling and information and education. A 
substantial number of 5-gallon plastic buckets are now being labeled in 
conformance to the ASTM labeling standard described above. According to 
a letter dated January 17, 1995 from counsel for five major bucket 
manufacturers, 80% of the buckets manufactured by those companies were 
[[Page 29520]] being labeled in accordance with the ASTM standard, and 
that compliance would increase in the coming months. The letter stated 
that these five companies comprise approximately 90% of the U.S. bucket 
market.(9)
    These five manufacturers also initiated an education and 
information program warning of the drowning hazard associated with 
plastic buckets. In late fall of 1994, they issued an audio news 
release and an audio public service announcement. They are in the 
process of producing a large color poster to be widely distributed 
through key safety, health and other organizations. As of February 8, 
1995, these firms had committed or spent approximately $250,000 on the 
campaign, and their counsel represented that the firms are committed to 
continuing the campaign over the next 2\1/2\ years, spending 
approximately an additional $250,000.(9)

G. Action by the Commission

    On February 8, 1995, the Commission held an oral briefing to have 
the staff provide an update on this proceeding. After considering the 
issues and information discussed above, the Commission determined that 
rulemaking is not warranted. Accordingly, the Commission voted to 
terminate the proceeding and withdraw the ANPR issued on July 8, 1994. 
In withdrawing the ANPR, the Commission is not relying on a voluntary 
standard under section 9 of the CPSA. See 15 U.S.C. 2064 and 16 CFR 
1115.5. As discussed below, the two Commissioners differed in the 
reasoning behind their common conclusion that rulemaking is 
unwarranted.
    Chairman Ann Brown stated: ``In view of the progress made by the 
bucket industry in placing English and Spanish warning labels on five-
gallon buckets, its commitment to an ongoing information and education 
campaign, the significant cost to the Commission and industry that 
could result in attempting to redesign buckets to meet a performance 
standard with no assurance that such a standard would be practicable 
and reasonable for all buckets, or even a majority of buckets, it makes 
sense to terminate the proceeding.''(10)
    In her statement, the Chairman reviewed the initiation of the 
proceeding and the industry's efforts involving labeling and developing 
an information and education campaign. She noted the apparent success 
of labeling legislation in California where, as far as the Commission 
is aware, no labeled bucket-related deaths have occurred since the law 
took effect. The Chairman noted that her decision was based in part on 
the significant resources that would be required to address the 
drowning hazard through a performance standard, noting that ``it is 
best to concentrate those resources on problems that are more clearly 
solvable within a reasonable period of time.'' Finally, the Chairman 
encouraged industry to continue exploring alternatives to labeling that 
could potentially eliminate the bucket drowning hazard.(10)
    Commissioner Mary Sheila Gall observed in her statement that ``it 
is clear that development of a voluntary performance standard and 
prototype solutions were unworkable, despite the best efforts of 
industry and our staff.'' Commissioner Gall explained that, although 
industry's efforts toward labeling and an information and education 
campaign were laudable, they did not form the basis of her vote to 
terminate the rulemaking. Rather, Commissioner Gall found that the 
drowning incidents occurred due to the absence of adult supervision. 
She stated: ``It is those charged with the responsibility of caring for 
young children who are creating the hazard. It is not the product.'' 
Commissioner Gall concluded that her vote to terminate the rulemaking 
reaffirmed her position ``that the Federal government cannot mandate 
changes in products as a substitute for responsible adult supervision. 
The deaths of these children are inexcusable. The fact that they were 
preventable is tragic.''(11)
    In accordance with the Commission's decision that a rulemaking 
proceeding is no longer warranted to address the drowning hazard 
associated with 5-gallon plastic buckets, the Commission hereby 
withdraws the ANPR published on July 8, 1994 (59 FR 35058).

    Dated: May 30, 1995.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.

Reference Documents
    The following documents contain information relevant to this 
rulemaking proceeding and are available for inspection at the Office 
of the Secretary, Consumer Product Safety Commission, Washington, 
Room 502, 4330 East-West Highway, Bethesda, Maryland 20814.
    1. Federal Register notice, ``Plastic Buckets; Advance Notice of 
Proposed Rulemaking; Request for Comments and Information,'' July 8, 
1994 (59 FR 35058).
    2. Comments received in response to Federal Register notice, 
``Plastic Buckets; Advance Notice of Proposed Rulemaking; Request 
for Comments and Information,'' July 8, 1994 (59 FR 35058).
    3. Memorandum from Ronald L. Medford, Assistant Executive 
Director, HIR, to the Commission, ``Commission Meeting on 5-Gallon 
Buckets,'' February 7, 1995.
    4. Memorandum from Suzanne P. Cassidy, EPHA to Celestine 
Trainor, EPHF, ``Data Update of Investigated Cases Associated with 
5-Gallon Buckets,'' January 20, 1995.
    5. Memorandum from George Sushinsky, LSEL, to Celestine Trainor, 
EPHF, ``LSEL Status Report on Performance Test Development,'' 
January 19, 1995.
    6. Log of Meeting of ASTM F15.31 Performance Task Group, July 
20, 1994.
    7. Log of Meeting of ASTM F15.31, January 25, 1995.
    8. ASTM ES 26-93: Standard for Specification of Cautionary 
Labeling for Five Gallon Open-Head Plastic Containers (Buckets).
    9. Letter from David H. Baker, Holland and Knight to Eric Rubel, 
CPSC, concerning industry program, January 17, 1995.
    10. Statement of Chairman Ann Brown, ``Five-gallon Buckets,'' 
February 8, 1995.
    11. Statement of Commissioner Mary Sheila Gall, ``The 
Termination of Rulemaking Proceedings Regarding Five Gallon 
Buckets,'' February 8, 1995.
    12. Memorandum from Suzanne P. Cassidy, EPHA to Ronald Medford, 
HAR, ``Location of Caregivers (Bucket Investigations),'' April 20, 
1995.

[FR Doc. 95-13597 Filed 6-2-95; 8:45 am]
BILLING CODE 6355-01-P