[Federal Register Volume 66, Number 45 (Wednesday, March 7, 2001)]
[Rules and Regulations]
[Pages 13645-13652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-5478]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1500


Dive Sticks; Final Rule

AGENCY: Consumer Product Safety Commission.

ACTION: Final rule.

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SUMMARY: The Commission is issuing a rule to ban certain dive sticks 
under the authority of the Federal Hazardous Substances Act.\1\ 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.
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    \1\ Commissioner Mary Gall filed a separate statement which is 
available from the Office of the Secretary, Room 502, 4330 East-West 
Highway, Bethesda, Maryland.

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DATES: The rule will become effective on April 6, 2001.

FOR FURTHER INFORMATION CONTACT: Renae Rauchschwalbe, Office of 
Compliance, Consumer Product Safety Commission, Washington, DC 20207; 
telephone (301) 504-0608, ext. 1362.

SUPPLEMENTARY INFORMATION:   

A. Background

    As of November 2000, the Commission is aware of nine 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.[1,9] \2\ 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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    \2\ 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.
    On July 19, 2000, the Commission published a notice of proposed 
rulemaking (``NPR'') proposing to ban hazardous dive sticks. 65 FR 
44703 (2000). The proposed rule stated that it would ban dive sticks 
that (1) are rigid; (2) submerge to the bottom of a pool of water; and 
(3) stand upright in water. The Commission proposed a performance test 
to determine the rigidity of a dive stick. Dive sticks that come to 
rest underwater at an angle greater than 45 degrees from vertical would 
be exempt under the proposed rule as would dive sticks that maintain a 
compressive force of less than 5-lbf under a prescribed performance 
test. The Commission has determined to

[[Page 13646]]

issue the proposed rule as a final standard without change.
    The Commission received one comment on the proposed rule. That 
comment came from a student at Florida International University. He 
asked whether it would be safer to discontinue the sale of all dive 
sticks, both soft and rigid. Based on available medical literature, the 
Commission concludes that only rigid dive sticks pose the threat of 
impalement injuries to children. The Commission is not aware of any 
impalement incidents, reported to CPSC or in the medical literature, 
involving any flexible objects. Thus, the Commission believes that the 
rule, including the exemption for non-rigid dive sticks, will 
adequately protect the public.[11]

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 required by section 3(f), this proceeding began with 
an ANPR. 64 FR 38387 (1999). After considering the one comment 
submitted in response to the ANPR, the Commission issued a proposed 
rule and a preliminary regulatory analysis in accordance with section 
3(h) of the FHSA. 65 FR 44703 (2000). The Commission then considered 
the comment received in response to the proposed rule and determined 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 generally used in swimming pools for underwater 
retrieval activities, such as retrieval games and swimming instruction. 
They are made of rigid plastic. They are typically cylindrical in 
shape, 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.
    Before the June 1999 recall, 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. 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.[8,12]
    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. Because 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.[8,12]

D. The Risk of Injury

    1. Description of Injury. Impalement injuries have occurred when a 
child accidently sat, fell or jumped buttocks-first into shallow water 
and landed on a dive stick. As discussed in the NPR, serious rectal or 
vaginal injuries can result. The severity of injuries depends on the 
degree of penetration by the object. The injuries could range from 
laceration of the rectum and sphincter, to puncture wounds and tears of 
the colon. Less serious injuries such as facial and eye injuries are 
also possible when a child attempts to retrieve a dive stick under the 
water.[2,10]
    2. Impalement Injury Data. As of November 2000, the Commission is 
aware of nine confirmed impalement injuries involving submerged 
vertically-standing dive sticks. All the victims were children ranging 
in age from three to nine years old.[10]
    Four females (ages 7 to 9) sustained injuries when the dive stick 
penetrated the vagina. Two males (ages 3 and 7) and two females (ages 5 
and 6) suffered injuries when the dive stick penetrated the rectum. In 
the remaining incident, a female received external lacerations around 
the rectum after landing on a dive stick. Medical attention was sought 
after each incident, and six of the injuries required surgery to 
address multiple internal and external injuries.These nine 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.[2,10]
    Eight of the impalement injuries occurred in shallow depths of 
water. Of these, five occurred in small wading pools with water levels 
between 12 and 24 inches. Of the remaining three incidents, one 
occurred on the top step of a spa, 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 ninth incident reportedly took place in a pool; however, 
neither the type of pool nor the water depth is known.[2,10] \3\
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    \3\ A tenth unconfirmed incident was reported to CPSC, but many 
details of the incident remain unclear.
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    The July 1999 ANPR provided summaries of impalement incidents 
reported at that time. The NPR published in July 2000 provided 
summaries of the three impalement injuries reported between publication 
of the ANPR and the NPR. One additional incident was not included in 
either the ANPR or the NPR. That incident involved a three-year-old boy 
who jumped or slid into a shallow pool and landed on an upright dive 
stick which penetrated his rectum. He suffered a 1\1/2\ inch puncture 
wound and tear in his bowels. Doctors performed a temporary colostomy 
and will have to reattach his intestines to his bowels once the 
puncture wound heals. The dive stick came in a package with a retrofit 
so that

[[Page 13647]]

the dive stick would not stand upright in the water. This retrofit was 
not attached to the product at the time of the incident.[10]
    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. As discussed in the NPR, the injuries occurred 
when the children attempted to retrieve the dive sticks from the bottom 
of the pool. The Commission has also received reports of 11 incidents 
of victims struck by a thrown dive stick. Five of these incidents were 
reported since the June 2000 briefing package. Seven females and four 
males were involved in the incidents. The victims ranged in age from 4 
years old to 40 years old. One of the recent incidents involved a foam 
dive stick as opposed to the recalled dive sticks made of hard plastic. 
The foam dive stick was made of a foam cylinder with a weighted plastic 
end. The plastic end of the dive stick is the part that contacted the 
victim, resulting in a laceration to the scalp.[2,10]

E. The Ban

    The Commission's rule will 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 rule will 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 disks, are still 
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 three 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 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]
    Commission staff tested samples of both rigid and flexible dive 
sticks. The flexible dive sticks began deflecting almost immediately. 
The maximum force remained under 5 lbf, which was achieved in under 10 
seconds. When the compression load was applied for a total of 40 
seconds, the dive stick bent significantly and the force readings 
dropped further from the recorded maximum force. In contrast to the 
flexible dive sticks, maximum force readings for rigid dive sticks 
exceeded 25-lbf in less than 3 seconds, with no noticeable bending.[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. 
According to Human Factors, ``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 that any of these would 
adequately reduce the risk of injury.
    1. 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.[8,12]
    2. Voluntary Standard. Currently, there is no applicable voluntary 
standard, nor was one submitted in response to the ANPR or the NPR. 
Moreover, because dive sticks are relatively inexpensive and easy to 
manufacture, compliance with a voluntary standard may be low.[8,12]

[[Page 13648]]

    3. 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); 
instructions to use only under the supervision of a competent swimmer, 
and/or warning 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, 12]
    4. 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 by filling them 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. Final Regulatory Analysis

1. Introduction

    The Commission has determined to ban dive sticks with certain 
hazardous characteristics. Section 3(i) of the FHSA requires the 
Commission to prepare a final regulatory analysis containing (1) a 
description of the potential benefits and costs of the rule, including 
any benefits or costs that cannot be quantified in monetary terms and 
the identification of those likely to be affected; (2) a description of 
alternatives considered by the Commission, a discussion of their costs 
and benefits, and a brief explanation of why they were not chosen; and 
(3) a discussion of any significant issues raised by comments on the 
preliminary regulatory analysis published with the proposed rule. 15 
U.S.C. 1261(i). The following discussion addresses these requirements.

2. Potential Benefits of a Rule Banning Certain Dive Sticks

    When used in shallow water, rigid dive sticks that stand upright in 
water can cause serious impalement injuries to the perineum. The CPSC 
is aware of eight confirmed impalement injuries that occurred prior to 
the 1999 recall. A ninth injury occurred in April 2000. However, 
because the recall of dive sticks had an unknown impact on the number 
of dive sticks in use, this analysis of the societal costs of dive 
stick injuries is limited to the eight occurring from 1990 through 
1999.\4\ All victims received medical attention after the injury and at 
least five required surgery. In one case a temporary colostomy was 
performed. The CPSC is aware of 17 non-impalement injuries associated 
with dive sticks. Four of these incidents involved submerged dive 
sticks and resulted in lacerations that required stitches or surgical 
glue to close. Although the rule is not directly aimed at reducing 
these injuries, some of these injuries may have been prevented by the 
rule.
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    \4\ An estimate of the number of dive sticks in use in needed to 
estimate the pre-regulatory risk of injury that will be addressed by 
the regulation.
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    The reduction in the societal costs of injuries represents the 
societal benefits of a ban on certain dive sticks. Based on estimates 
from the CPSC's Injury Cost Model, the costs of impalement injuries, 
such as those from dive sticks, may range from about $9,000 for 
injuries that do not require hospitalization to about $100,000 for 
injuries that 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 9 years-of-age (the age 
range of the known victims). These cost estimates include the cost of 
medical treatment, pain and suffering, lost work time (including that 
lost by parents and caregivers), and legal and liability costs.
    If we assume that the only cases that required hospitalization were 
the 5 incidents that required surgery, the total societal costs of the 
known incidents are about $527,000 (5 cases  x  $100,000 and 3 cases 
x  $9,000) or an average of $52,700 a year since 1990. This is a low 
estimate of the total societal cost because it is based only on the 
cases known to CPSC. There may have been other injuries of which CPSC 
is not aware.
    A useful measure for analytical purposes is the annual average 
injury cost per dive stick. This estimate is derived by dividing the 
average annual societal costs of injuries by the average number of dive 
sticks in use each year. As discussed earlier, the average number of 
dive sticks in use each year from 1990 to 1999 ranged from about 3 
million units (assuming a 1 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 ($52,700  5.5 million) to 2 cents per dive stick 
in use ($52,700  3 million).
    Since dive sticks may last from one to four years, the societal 
costs of injuries per dive stick over the entire life of the dive stick 
range from about 2 cents ($0.02  x  1 year) to about 4 cents ($.01  x  
4 years). Since the benefit of a ban on certain dive sticks is the 
reduction in the societal cost of the injuries, the benefits of a ban 
that eliminates these injuries is about 2 to 4 cents per banned dive 
stick removed from or prevented from entering the market.
    The average total annual cost of dive stick injuries of $52,700 is 
based on known injury cases from 1990 to 1999. However, as noted 
earlier, dive stick sales increased from less than 1 million per year 
to about 5 million. If rigid dive sticks that stand upright in water 
had not been recalled and their annual sales had leveled off at about 5 
million units annually (the sales volume in the late 1990s), the 
product population model indicates that the number of dive sticks in 
use would have reached 8 to 20 million units within the next few years. 
Since we estimated that the societal cost of injuries per dive stick in 
use was about 1 to 2 cents, this indicates that the annual cost of dive 
stick impalement injuries would have reached approximately $160,000 
($0.02  x  8 million) to $200,000 ($0.01  x  20 million) per year had 
these dive sticks not been recalled.
    The benefits of eliminating dive stick injuries most directly 
affect households with children, since all victims have been 9 years 
old or younger. However, since medical costs are generally pooled 
through insurance, and some of the benefits include a reduction in lost 
worktime of caregivers, the monetary benefits of the proposed rule 
would be diffused through society as a whole.

[[Page 13649]]

3. Potential Costs of the Rule

    Rigid dive sticks that stand upright were removed from the U.S. 
market in 1999 when the Commission recalled dive sticks. Since then, 
when the CPSC has become aware of a rigid dive stick that stands 
upright being available in this country, the staff has taken action 
under the authority of section 15 of the FHSA to remove the dive stick 
from the market. The rule being issued now promulgates a ban on these 
dive sticks and establishes a performance standard for dive sticks. The 
performance standard establishes criteria for distinguishing dive 
sticks that are unlikely to pose impalement risks (and so are not 
banned) from dive sticks that may impose impalement risks (and 
therefore, are banned).
    Manufacturers that produced the banned dive sticks (or that 
continue to produce these dive sticks for sale in other countries) will 
incur some costs to modify their products to conform to the 
requirements of the rule. The CPSC staff believes that the 
modifications can be made with minimal impact on tooling and other 
production processes. For example, some manufacturers may be able to 
continue to use the same molds that they used for rigid dive sticks, 
but with a softer or more flexible plastic. Other manufacturers may be 
able to use the same material as before but adjust the center of 
gravity of the dive sticks so that they do not stand upright in water. 
Consequently, it seems reasonably likely that when the incremental cost 
of the changes are spread over large production runs, the cost will be 
no more than the benefits--2 to 4 cents per dive stick manufactured.\5\
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    \5\ Manufacturers that enter the dive stick market after the 
rule goes into effect may not incur any additional costs associated 
with ``redesigning'' dive sticks because they would design their 
products from the start to comply with the rule's requirements.
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    The ban on rigid dive sticks that stand upright may reduce consumer 
utility if consumers prefer the banned dive sticks to the substitute 
products (i.e., dive sticks that do not stand upright, flexible dive 
sticks, dive rings, dive disks, and so on). However, because these 
substitute products serve essentially the same purposes and would cost 
about the same,\6\ the negative impact on consumer utility, if any, is 
unlikely to be significant.
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    \6\ Dive rings appeared to retail for approximately the same 
price per package as dive sticks, but there are generally fewer dive 
rings per package than dive sticks. For example, packages of dive 
sticks often contained 6 dive sticks; packages of dive rings seldom 
contain more than 4 rings. The retail prices of dive disks appear to 
be roughly equal to the retail prices of dive sticks. Modified dive 
sticks (that are either not rigid or that do not stand upright) 
retail for close to the prices of the banned dive sticks.
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4. Alternatives Considered

    The Commission considered several alternatives to issuing this rule 
to ban certain dive sticks. These included (1) taking no action and 
relying on a voluntary standard or section 15 actions, (2) a labeling 
only requirement, and (3) changing the scope of the products subject to 
the ban.
    (a) Taking No Action and Relying on a Voluntary Standard or Section 
15 Activities. The Office of Compliance has successfully negotiated 
recalls with many of the firms that manufactured or imported the dive 
sticks. Other firms for which recalls were not negotiated have 
voluntarily ceased distributing these dive sticks. However, since it is 
relatively easy for firms to enter this market, new firms could begin 
selling non-complying dive sticks in the absence of a standard. CPSC is 
aware of at least one firm that was not involved in the June 1999 
recall but was distributing dive sticks after June 1999.
    The Commission could continue to use its Section 15 authority to 
recall hazardous dive sticks when they are found instead of banning 
them outright. However, this approach would require the CPSC staff to 
make a determination that a product was hazardous each time a new dive 
stick was introduced to the market. Additionally, without a standard, 
potentially hazardous products would be available to consumers while 
CPSC staff were making this determination.
    There is no voluntary standard for dive sticks that addresses the 
impalement hazard, nor was a proposed standard submitted in response to 
the NPR. Even if one were developed, it would be difficult to enforce 
since dive sticks are relatively easy to manufacture and new firms 
could easily begin distributing the product. Therefore, compliance with 
a voluntary standard may be low.
    (b) Labeling Only Requirement. The staff explored the possibility 
of a warning label instead of a ban. However, according to the 
Commission's Human Factors staff, a warning label is the least 
effective approach to reducing the number of injuries. A label that is 
highly visible and clearly communicates the hazard could have a 
significant impact at the point of purchase. However, a label on the 
package would not remain with the product after the sale, and because 
the product is intended for use in the water, it is likely that any 
label attached to the product itself would not last the life of the 
product. Moreover, the surface area on a dive stick is not conducive to 
designing an effective warning label.
    (c) Changing the Scope. The scope of the rule could be modified so 
that it applies only to pre-weighted dive sticks. However, the staff 
found that consumers could weight some unweighted dive sticks so that 
they stood vertically in water. These products would then present 
exactly the same impalement hazard as the pre-weighted dive sticks.

5. Significant Issues Raised by Comments on Preliminary Regulatory 
Analysis

    The Commission did not receive any comments concerning the 
preliminary regulatory analysis.

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). For the reasons 
discussed below, the Commission made this certification in the NPR.
    Although most of the firms that manufactured or imported dive 
sticks are small businesses, staff analysis suggests that the rule is 
unlikely to have a significant effect on any businesses, large or 
small. Most manufacturers removed their dive sticks from the market in 
response to the 1999 recalls. Some manufacturers have already taken 
steps to redesign their products. If the redesigned products conform to 
the rule, the manufacturers would not incur any additional costs. In 
addition, as discussed above, the costs of the rule are likely to be 
small. 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.[8,12]

[[Page 13650]]

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 assessed the 
possible environmental effects associated with the 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 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.[8,12]

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 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 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 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 will become effective 30 days from publication in the 
Federal Register and will apply to dive sticks entering the chain of 
distribution on or after that date. As stated in the NPR, the 
Commission believes a 30-day effective date is appropriate because (1) 
due to the 1999 recalls, few, if any, hazardous 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.[1,8,9]

L. Commission 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). Accordingly, the 
Commission makes 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. Id. 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 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 finds 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. 15 U.S.C. 1262(i)(2). The 
Commission considered pursuing voluntary recalls, following a voluntary 
standard, requiring labeling or changing the scope of the rule. A 
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. Modifying the scope so that the rule would only apply to pre-
weighted dive sticks would continue to permit hazardous items because 
the unweighted dive sticks can easily be weighted to stand vertically 
at the bottom of the water. Thus, the Commission finds 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.

List of Subjects in 16 CFR Part 1500

    Consumer protection, Hazardous materials, Hazardous substances, 
Imports, Infants and children, Labeling, Law enforcement, and Toys.

Conclusion

    For the reasons stated above, the Commission concludes that the 
dive sticks described in this 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). Therefore, 
the Commission amends 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 to add a new paragraph (a)(18) to 
read as follows:


Sec. 1500.18  Banned toys and other banned articles intended for use by 
children.

    (a) * * *

[[Page 13651]]

    (18)(i) 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.
    (ii)(A) Findings. In order 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). 
These findings are discussed in paragraphs (a)(18)(ii)(B) through (D) 
of this section.
    (B) Voluntary standard. No findings concerning compliance with and 
adequacy of a voluntary standard are necessary because no relevant 
voluntary standard addressing the risk of injury posed by dive sticks 
has been adopted and implemented.
    (C) Relationship of benefits to 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 
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 finds that 
there is a reasonable relationship between the expected benefits of the 
rule and its costs.
    (D) Least burdensome requirement. The Commission considered 
pursuing voluntary recalls, following a voluntary standard, requiring 
labeling or changing the scope of the rule. A 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. 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. Modifying the 
scope so that the rule would only apply to pre-weighted dive sticks 
would continue to permit hazardous items because the unweighted dive 
sticks can easily be weighted to stand vertically at the bottom of the 
water. Thus, the Commission finds 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.
* * * * *

    3. Section 1500.86 is amended to add new paragraphs (a)(7) and (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)(18) 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:
    (1) Be sufficiently wide to allow the dive stick to lie along the 
bottom with its long axis in a horizontal position,
    (2) Have clear side walls to permit observation of the dive stick 
under water, and
    (3) 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)(18) 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: March 1, 2001.
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

[[Page 13652]]

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 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.
    9. 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,'' February 15, 2001.
    10. Memorandum from Debra Sweet, Directorate for Epidemiology, 
to Scott Heh, Project Manager, ``Injury Data Related to Dive 
Sticks,'' January 30, 2001.
    11. Memorandum from Scott Heh, Project Manager, to File, 
``Comment Responding to the NPR on Dive Sticks,'' January 24, 2001.
    12. Memorandum from Robert Franklin, Economist, Directorate for 
Economic Analysis, to Scott Heh, Project Manager, ``Final Regulatory 
Analysis: Dive Sticks,'' February 14, 2001.

[FR Doc. 01-5478 Filed 3-6-01; 8:45 am]
BILLING CODE 6355-01-P