[Federal Register Volume 64, Number 136 (Friday, July 16, 1999)]
[Proposed Rules]
[Pages 38387-38390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18113]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Chapter II


Dive Sticks; Advance Notice of Proposed Rulemaking; Request for 
Comments and Information

AGENCY: Consumer Product Safety Commission.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The Commission has reason to believe that certain dive sticks 
may present an unreasonable risk of injury. Such dive sticks are 
constructed in such a manner that children can become impaled on them 
when jumping into shallow water where the dive sticks are oriented in 
an upright position. This impalement can result in serious injuries. 
Dive sticks are one of several types of devices used for underwater 
retrieval activities in swimming pools. They are typically made of 
rigid plastic, and are or can be weighted so that when dropped into 
water they sink and stand upright on the bottom. Dive sticks have a 
variety of shapes, but many have a hollow tube cross section or a solid 
X-shaped cross section. Dive sticks are sold under a variety names such 
as dive sticks, diving sticks, fish sticks, sticks and batons.
    This advance notice of proposed rulemaking (``ANPR'') initiates a 
rulemaking proceeding that could result in a rule banning dive sticks 
with certain characteristics that cause them to be hazardous. This 
proceeding is commenced under the Federal Hazardous Substances Act.
    The Commission solicits written comments concerning the risks of 
injury associated with dive sticks, the regulatory alternatives 
discussed in this ANPR, other possible ways to address these risks, and 
the economic impacts of the various regulatory alternatives. The 
Commission also invites interested persons to submit an existing 
standard, or a statement of intent to modify or develop a voluntary 
standard, to address the risk of injury described in this ANPR.

DATES: Written comments and submissions in response to this ANPR must 
be received by September 14, 1999.

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-
[email protected]. Comments should be captioned ``ANPR 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. The Product

    Dive sticks are one of several types of devices used for underwater 
retrieval activities in swimming pools. They are typically made of 
rigid plastic, and are, or can be weighted so that when dropped into 
water they sink and stand upright on the bottom. Dive sticks have a 
variety of shapes, but many have a hollow tube cross section or a solid 
X-shaped cross section. Dive sticks are sold under a variety of names 
such as dive sticks, diving sticks, fish sticks, sticks and batons.
    The Commission's technical staff preliminarily considers a dive 
stick that has all of the following characteristics to pose a hazard 
for traumatic injuries to the perineum, including laceration and 
perforation injuries associated with rectal and vaginal impalement:
    1. The product is essentially rigid.
    2. The product is weighted, or can be weighted, so that when 
dropped in the water, it sinks to the bottom and stands upright.
    3. The product has an elongated shape with a top end that is small 
enough in cross section to concentrate the force of impact and allow 
penetration of the rectum or vagina. (As examples, a hazardous dive 
stick could have a cylindrical shape with a blunt end or it may have a 
more pointed end, such as one product that is shaped like a shark 
silhouette.)

B. The Risk of Injury

1. Description of Injury

    When used in shallow water, serious rectal or vaginal impalement 
injuries can occur when a child accidentally falls on or jumps 
buttocks-first into the water, and lands on a dive stick. Facial and 
eye injuries are also possible when a child attempts to retrieve a dive 
stick under the water.
    While penetrating injuries account for only a very small percentage 
of traumatic injuries in children, they are severe. Falls on vertical 
objects may result in traumatic injuries to the perineum. The severity 
of rectal or vaginal lesions after impalement depends on the degree of 
penetration by

[[Page 38388]]

the object. This in turn is dependent on the force of impact and the 
physical properties of the involved object (size and surface 
characteristics). The severity of injury 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 septic 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, the management of these pediatric injuries often 
requires aggressive and drastic surgical means. 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 children's health. In addition to long-term physiological 
effects on children, these types of injuries have the potential to 
cause long-lasting emotional trauma.

2. Injury Data

    The Commission has learned of seven incidents in which dive sticks 
caused serious injury to young children. Six of these were impalement 
incidents that resulted in serious vaginal or rectal injuries. The 
seventh incident was a facial laceration just below the eye. All the 
victims were children ranging in age from six to nine years old. Each 
of the incidents occurred with vertical-standing toy dive sticks. The 
eye/facial injury was from a shark-shaped dive stick. All of the 
vaginal and rectal injuries were from baton-shaped dive sticks, 
approximately 7\7/8\ to 8\5/8\ inches long and \7/8\ to one inch in 
diameter. The victims were injured while playing in shallow water. 
Three incidents occurred in small wading pools with water levels 
between 12 and 24 inches. One occurred in a spa with unknown water 
depth and one in a 3-foot pool with approximately 27 inches of water. 
Another incident occurred in a swimming pool with an unknown depth of 
water. The incidents are as follows:
    a. July 22, 1990--The 7-year-old female victim was playing with her 
cousins in an above-ground swimming pool. She jumped up and out of the 
water, tucked her knees to her chest to do a ``cannon ball'' jump and 
re-entered the water. The victim entered the water buttocks first and 
rapidly descended to the bottom of the pool, where her buttocks came in 
contact with the upright, cylindrical toy dive stick. The toy dive 
stick caused lacerations around the victim's rectum. No stitches were 
required and the victim has recovered fully.
    b. July 22, 1993--The 8-year-old girl was sitting on the edge of 
her family's spa with her feet in the water. She used her arms to push 
off the edge and sit on a lower step of the spa, without seeing the 
vertical-standing, cylindrical toy dive stick on the same lower step. 
The toy dive stick slipped past the victim's swimsuit and penetrated 
her vagina. Immediate medical attention was sought, and surgery was 
performed to repair multiple internal, vaginal lacerations. Additional 
surgery was necessary 5 months later. No recovery records are 
available.
    c. July 24, 1995--The 9-year-old female victim jumped into a 
swimming pool and landed on a toy dive stick causing deep vaginal 
lacerations.
    d. August 3, 1997--The 6-year-old female victim jumped into her 
inflatable wading pool. The victim's buttocks area landed on top of the 
vertical-standing, cylindrical toy dive stick. The product and the 
girl's swimsuit were projected into her rectum. The victim was admitted 
to a children's hospital for surgery to repair perineal and external 
sphincter lacerations. The victim has recovered from the incident, but 
will be examined periodically.
    e. June 10, 1998--The eight-year-old female victim was playing with 
her brother in a wading pool. She fell backwards in the pool, landing 
on the cylindrical toy dive stick that was standing upright on the 
bottom of the pool. The toy dive stick penetrated the vagina. A 
physician surgically repaired the laceration with both internal and 
external sutures. The victim has recovered.
    f. June 28, 1998--The 7-year-old boy and his brother had been 
playing with the cylindrical toy dive sticks prior to the incident. The 
victim ran and jumped buttocks first into the wading pool. He impaled 
himself via the rectum on a toy dive stick that was standing upright in 
the water. Surgery was performed to repair a laceration of the rectum, 
and a temporary colostomy was performed to repair the perforated 
intestine. The victim healed, but continues to complain of abdominal 
pain.
    g. August 13, 1998--The 6-year-old female victim and three other 
children were in a small wading pool playing with toy dive sticks that 
were shaped like sharks. The victim stuck her face into the pool to 
retrieve the toy dive stick and hit her face on the toy. She received a 
\3/4\ inch laceration below her left eye, which required sutures to 
close. The victim has recovered.

C. Relevant Statutory Provisions

    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 is 
commenced by issuance of this ANPR. After considering any comments 
submitted in response to this ANPR, the Commission will decide whether 
to issue a proposed rule and a preliminary regulatory analysis in 
accordance with section 3(h) of the FHSA. If a proposed rule is issued, 
the Commission would then consider the comments received in response to 
the proposed rule in deciding whether to issue a final rule and a final 
regulatory analysis. 15 U.S.C. 1262(i).

D. Regulatory Alternatives

    One or more of the following alternatives could be used to reduce 
the identified risks associated with dive sticks.
    1. Mandatory rule. The Commission could issue a rule declaring 
certain dive sticks to be banned hazardous substances. This rule could 
define the

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banned products in terms of physical or performance characteristics, or 
both.
    2. Labeling rule. The Commission could issue a rule banning dive 
sticks that did not contain specified warnings and instructions.
    3. Voluntary standard. If the industry developed, adopted, and 
conformed to an adequate voluntary standard, the Commission could defer 
to the voluntary standard in lieu of issuing a mandatory rule.
    4. Reliance on recalls. The Commission has obtained voluntary 
corrective actions with respect to certain dive sticks. The Commission 
could continue to rely on corrective actions, both voluntary and 
mandatory, in lieu of or in addition to a mandatory rule.

E. Existing Standards

    The Commission is not aware of any state, voluntary, foreign, 
international, or other standards dealing with the described risk of 
injury.

F. Market Information

1. The Product

    Dive sticks are one of several types of devices used for underwater 
retrieval activities in swimming pools. They are typically made of 
rigid plastic, and are or can be weighted so that when dropped into 
water they sink and stand upright on the bottom. They are usually 
cylindrical in shape, but some have shapes that resemble such things as 
fish, sharks, or other sea creatures. Typically, the length is 8 inches 
or less and the diameter is one inch or less. Dive sticks and other 
dive toys are often numbered with a point value (e.g., 10 through 60) 
for counting up totals in games. In some cases, the units with the 
higher point values may be shorter than those with lower point values.
    Dive sticks are usually sold in sets of 3 to 6 sticks. They are 
often sold as part of a package that contains 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). They are also sold with things such as 
masks, goggles, or snorkels. At retail they cost from $4 to $7 per set, 
or about $1 per individual stick. Even when sold with other products 
such as disks, rings, and snorkels, they usually cost less than $10.
    Dive sticks and other dive toys are widely available. They are 
often sold in the seasonal aisles of grocery and drug stores and can be 
purchased at many department and variety stores. Dive toys are also 
available through some mail order catalogs and at various pool dealers.

2. Substitutes

    A wide range of substitutes is available for dive sticks. The 
closest substitute may be dive rings since these are also weighted so 
that they stand up on the bottom of the pool. Other substitutes are 
dive disks, which are flat, plastic disks that sink to the bottom of 
the pool, but lie flat rather than on end. There are also a variety of 
dive eggs. In general, these substitutes are manufactured and sold by 
the same companies that manufacture and sell dive sticks, often in the 
same package. The retail prices of these substitutes are about the same 
as the retail prices for the dive sticks.

3. Sales and Number Available for Use

    Dive sticks have been sold for over 20 years. However, historical 
sales data are not available to determine whether or not there has been 
a trend in their use. Based on information that several companies 
provided to the CPSC, over 19 million dive sticks have been sold. 
Current sales of individual dive sticks appear to be at least 4 million 
units annually. Since they are usually sold in packages of 3 to 6 
sticks each, this indicates that around 1 million packages are 
purchased annually.
    In trade publications, dive sticks are classified in the water/
pool/sand toys category. This category includes products such as water 
guns, floats, wading pools, and sand buckets. Sales vary with season, 
with more sold in the summer than in the winter. Sales of water/pool/
sand toys also tend to vary from year to year depending on how hot the 
summer or swimming season is. In 1997, retail sales of water/pool/sand 
toys exceeded $450 million, according to a trade publication. Since 
dive sticks retail for approximately $1 per stick, dive sticks likely 
make up less than one percent of retail sales in this category.
    A substantial number of dive sticks are likely available for use 
for several years after their purchase. Since several million dive 
sticks have been sold annually for the last few years, the total number 
available for use could easily exceed 10 million units. Assuming dive 
sticks are sold in sets of 3 to 6 each, this indicates that several 
million households are likely to own dive sticks.

4. Suppliers

    The CPSC's staff has identified at least 15 firms that manufacture 
or import dive sticks into the United States. Most of the firms that 
import dive sticks obtain their product from China, Hong Kong, or 
Taiwan. There may be other manufacturers or importers that the staff 
has not identified. Additionally, because of the simplicity of the 
product, there are few barriers to entry into the market.
    The staff's initial research indicates that most of the firms that 
have been identified are small businesses according to the Small 
Business Administration guidelines because they have fewer than 100 
employees for importers or 500 employees for manufacturers. However, in 
all cases, dive sticks probably account for a very small percentage of 
any firm's sales. Several of the manufacturers market various types of 
pool toys. Others have additional lines such as other types of toys or 
pool equipment.

5. Economic Considerations

    The CPSC is aware of 7 injuries involving dive sticks since 1990 
that resulted when a child hit a dive stick standing upright on the 
bottom of a pool. Although the number of injuries is low, some of the 
injuries are severe. Some of the injuries have resulted in damage to 
the victim's rectal or vaginal areas. At least four of these incidents 
required hospitalization, and in one case a temporary colostomy was 
performed.
    The societal costs of these incidents include primarily medical 
costs, lost productivity, and pain and suffering. The total societal 
costs of the incidents are likely to be relatively low since the 
incidents of concern appear to be relatively rare. However, the 
severity of some of the incidents indicates that the average societal 
costs of the incidents requiring hospitalization may exceed $100,000, 
based on estimates obtained from the Directorate for Economic's Injury 
Cost Model for hospitalized cases involving punctures or lacerations to 
the victims lower trunk area.
    The cost of modifying dive sticks to reduce or remove the risk is 
likely to be low. For example, dive sticks could be modified so that 
they lie horizontally on or at an angle at the bottom of the pool, 
rather than vertically. Such a change may involve some changes in 
tooling, molds, and design, but little in terms of production and 
material costs. Such a change is unlikely to substantially reduce the 
utility of the product to consumers. Another option may be to 
manufacture dive sticks from a material that is less rigid and unlikely 
to cause serious injury to a person who falls on the product. Moreover, 
commercial substitutes for dive sticks already are available. These 
substitutes are not dangerous but provide the same play experience. If 
hazardous dive sticks were banned altogether, there is little, if any, 
reason to doubt that these

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substitutes would enjoy increased purchases.

G. Solicitation of Information and Comments

    This ANPR is the first step of a proceeding that could result in a 
mandatory rule for dive sticks to address the described risk of injury. 
All interested persons are invited to submit to the Commission their 
comments on any aspect of the alternatives discussed above. In 
particular, CPSC solicits the following additional information:
    1. The models and numbers of dive sticks produced for sale in the 
U.S. each year from 1990 to the present;
    2. The names and addresses of manufacturers and distributors of 
dive sticks;
    3. The expected useful life of dive sticks.
    4. Comparisons of the utility obtained from dive sticks versus 
substitute products (e.g., dive rings or disks or dive sticks that lie 
horizontally, rather than vertically);
    5. The number of persons injured or killed by the hazards 
associated with dive sticks;
    6. The circumstances under which these injuries and deaths occur, 
including the ages of the victims;
    7. An explanation of designs that could be adapted to dive sticks 
to reduce the described risk of injury;
    8. Physical or performance characteristics of the product that 
could or should not be used to define which products might be subject 
to a rule;
    9. The costs to manufacturers involved in either redesigning dive 
sticks to remove the risk or removing dive sticks from the market.
    10. Other information on the potential costs and benefits of 
potential rules;
    11. Steps that have been taken by industry or others to reduce the 
risk of injury from the product;
    12. The likelihood and nature of any significant economic impact of 
a rule on small entities;
    13. The costs and benefits of mandating a banning, labeling or 
instructions requirement.
    Also, in accordance with section 3(f) of the FHSA, the Commission 
solicits:
    1. Written comments with respect to the risk of injury identified 
by the Commission, the regulatory alternatives being considered, and 
other possible alternatives for addressing the risk.
    2. Any existing standard or portion of a standard which could be 
issued as a proposed regulation.
    3. A statement of intention to modify or develop a voluntary 
standard to address the risk of injury discussed in this notice, along 
with a description of a plan (including a schedule) to do so.
    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 20814; telephone (301) 504-0800. Comments also may be filed by 
telefacsimile to (301) 504-0127 or by email to [email protected]. 
Comments should be captioned ``ANPR for Dive Sticks.'' All comments and 
submissions should be received no later than September 14, 1999.

    Dated: July 12, 1999.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 99-18113 Filed 7-15-99; 8:45 am]
BILLING CODE 6355-01-P