[Federal Register Volume 65, Number 139 (Wednesday, July 19, 2000)]
[Proposed Rules]
[Pages 44703-44709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-18058]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 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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 

  Federal Register / Vol. 65 , No. 139 / Wednesday, July 19, 2000 / 
Proposed Rules  

[[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 [email protected]. 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  5.5 million sticks) to 
about 2 cents per dive stick in use ($47,400  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 
0.1 lbf [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 
(0.01 in/sec) [1.3 mm.sec 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