[Federal Register Volume 68, Number 20 (Thursday, January 30, 2003)]
[Rules and Regulations]
[Pages 4697-4699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-2205]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1500


Exemptions From Classification as Banned Hazardous Substances; 
Exemption for Certain Model Rocket Propellant Devices for Use With 
Rocket-Powered Model Cars

AGENCY: Consumer Product Safety Commission.

ACTION: Final rule.

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SUMMARY: The Commission is issuing a rule to exempt from the Federal 
Hazardous Substances Act (``FHSA'') certain model rocket propellant 
devices for vehicles that travel on the ground. The Commission's 
current regulations exempt motors used for flyable model rockets. The 
rule exempts certain propellant devices for rocket-powered model cars 
if they meet requirements similar to those required for flyable model 
rockets and additional requirements to avoid possible injuries if the 
cars are operated off of their tether.

DATES: The rule becomes effective on January 30, 2003.

FOR FURTHER INFORMATION CONTACT: James G. Joholske, Office of 
Compliance, Consumer Product Safety Commission, Washington, DC 20207; 
telephone (301) 504-0608 ext. 1419.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 2(q)(1)(A) of the FHSA bans toys that are or contain 
hazardous substances that are accessible to a child. 15 U.S.C. 
1261(q)(1)(A). However, the FHSA authorizes the Commission, by 
regulation, to grant exemptions from classifications as banned 
hazardous substances for:

articles, such as chemistry sets, which by reason of their 
functional purpose require the inclusion of the hazardous substance 
involved, or necessarily present an electrical, mechanical, or 
thermal hazard, and which bear labeling giving adequate directions 
and warnings for safe use and are intended for use by children who 
have attained sufficient maturity, and may reasonably be expected to 
read and heed such directions and warnings.

15 U.S.C. 1261(q)(1)(A). Thus, the Commission may issue an exemption if 
it finds that the product requires inclusion of a hazardous substance 
in order for it to function, has sufficient directions and warnings, 
and is intended for children who are old enough to read and follow the 
directions and warnings. Id. The Food and Drug Administration, which 
administered the FHSA before the Commission was established, issued a 
rule under this authority that exempted from the definition of banned 
hazardous substances model rocket propellant devices (motors) designed 
for use in light-weight, recoverable, and reflyable model rockets, if 
they meet certain requirements. 16 CFR 1500.85(a)(8).

B. The Petition

    The Commission received a petition from Centuri Corporation 
(``Centuri'') requesting that the Commission issue a rule exempting 
certain model rocket propellant devices to be used for model cars that 
travel on the ground along a tethered line and are propelled in a 
manner similar to flyable rockets. The petitioner requested an 
exemption that would allow the sale of both of its two prototype 
rocket-powered model cars. The smaller car, named ``Blurzz,'' uses an 
``A'' motor, and is shaped like a ``rail,'' a type of custom-made 
vehicle used in competitive drag racing. The larger prototype, named 
``Screamin' Eagle,'' uses a ``D'' motor, and is shaped like a 
``Bonneville Speed Record'' custom vehicle. The Commission decided to 
grant the petition in part and propose an exemption for model rocket 
propellant devices to be used for rocket-powered model cars like the 
smaller ``Blurzz'' car only.\1\
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    \1\ The Commission voted 2-1 to grant the petition with regard 
to the smaller vehicles and deny it regarding the larger ones. 
Commissioners Thomas Moore and Mary Sheila Gall voted to take this 
action. Then-Chairman Ann Brown voted to deny the entire petition.
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C. The Proposed Exemption

    On January 30, 2002, the Commission published a notice of proposed 
rulemaking (``NPR'') proposing to exempt model rocket propellant 
devices for use with smaller rocket-powered model cars like the 
``Blurzz.'' 67 FR 4373. As explained in the NPR, the Commission 
concluded that due to the weight, speed and the height it can reach, 
the larger ``Screamin' Eagle'' posed a significant risk of injury to 
any person downrange from it when it is used in the absence of the 
tether. The Commission, therefore, denied the petition insofar as it 
requested an exemption from the FHSA for model rocket propellant 
devices for cars like the ``Screamin' Eagle.'' However, the Commission 
concluded that when the smaller ``Blurzz'' car was ignited

[[Page 4698]]

without the tether, it ordinarily simply flipped onto its back and 
skittered around on the ground or traveled downrange only a very 
limited distance, and rose only a few inches in the air, before 
flipping onto its back. Thus, the Commission concluded that there is a 
reasonable probability that model rocket propellant devices for rocket-
powered model cars like the ``Blurzz'' present no unreasonable risk of 
injury even when operated in reasonably foreseeable misuse without the 
tether. The Commission also preliminarily found that children 
interested in model rockets and rocket-powered model cars such as the 
``Blurzz'' are of sufficient maturity that they may reasonably be 
expected to read and heed the directions for use and warnings that 
accompany model cars like the ``Blurzz.'' The Commission also 
preliminarily found that those directions and warnings are adequate to 
guide users in the safe use of the product.

D. Comments on the NPR

    The Commission received three comments on the NPR from Centuri, 
Intertek Testing Services (``Intertek''), and the National Association 
of Rocketry (``NAR''). Centuri commented on some of the technical 
statements in the staff's memos that were part of the briefing package 
concerning Centuri's petition. The comment from Intertek was actually 
test results submitted by Centuri. Intertek suggested enlarging the 
safety alert symbol that appears in directions for the model car. 
Commission staff agrees that the entire warning label should be larger. 
NAR agreed with the Commission that the exemption should be limited to 
smaller ``A'' motors.

E. The Final Rule

    When reviewing data for the petition, the Commission's Directorate 
for Epidemiology found two deaths over a 20-year period involving model 
airplanes (both involved adult males, 40 and 44 years of age). Centuri 
provided additional information about these. In one incident, the plane 
weighed about 5 pounds (compared to 2.7 oz. for a size ``A'' rocket-
powered model car), and was traveling at an estimated 200 mph (compared 
to the top speed of 28 mph for the size ``A'' car). Centuri 
characterized the airplane in the other incident as ``quite large and 
heavy.'' The staff reviewed data available after the petition briefing 
package (for the period May 26, 2001 to April 15, 2002) and found no 
deaths that could be considered comparable to deaths that might involve 
rocket-powered model cars.
    The Commission's Human Factors staff reviewed revised instructions 
submitted by Centuri and concluded that the revisions were an 
improvement over previous instructions and would make them easier for 
users age 10 and up to follow.
    The Commission's Engineering staff reviewed results of testing from 
Intertek. Intertek was primarily concerned with the dangers of 
launching the engine alone without the vehicle. Because such motors are 
currently available with other exempted products, the staff does not 
believe that exempting rocket-powered model cars creates or increases 
the hazard of igniting motors outside the vehicles. Intertek was also 
concerned about launching cars from a ramp or vertical support. 
However, the Engineering staff believes such operation would be similar 
to launching a model rocket, and injury data do not suggest a problem 
with model rockets in those types of launches.
    The Commission's staff was concerned about possible injuries if 
rocket powered cars are operated off the tether. As discussed above, 
when the ``Blurzz'' was used without the tether it traveled only a 
limited distance a few inches off the ground and then flipped on its 
back. Such performance is not likely to injure operators or bystanders. 
However, Compliance staff was concerned that in the future a company 
may develop a rocket-powered model car that when operated off the 
tether could obtain sufficient height, distance and force to injure 
operators or bystanders. Thus, the final rule contains a limitation 
that vehicles must be designed so that they either cannot operate off 
of a track or line ( i.e., tether), or if operated off the tether the 
vehicle will be unstable and will not travel in a guided fashion, so 
that the car will not strike operators or bystanders. The Commission 
reminds manufacturers that under section 15 of the Consumer Product 
Safety Act they have an obligation to report to the Commission if they 
have information which reasonably supports the conclusion that their 
product creates an unreasonable risk of serious injury or death or 
contains a defect which could create a substantial product hazard. 15 
U.S.C. 2064(b)(2) & (3). The Commission has the authority to pursue 
corrective action regarding any toy or other children's article that 
creates a substantial risk of injury to children. 15 U.S.C. 1274(c)(1).
    A small change was made to the final rule in order to correct a 
cross reference that conflicted with the characteristics of an A motor 
described in section 1500.85(a)(14)(i)(B) of the rule and to include 
appropriate provisions of the cross-reference in the rule itself.

F. Effective Date

    This rule exempts certain model rocket propellant devices for 
rocket-powered model cars that would otherwise be banned under the 
FHSA. Because the rule grants an exemption, it is not subject to the 
requirement under the Administrative Procedure Act (``APA'') that a 
rule must be published 30 days before it takes effect. 5 U.S.C 
553(d)(1). The rule lifts an existing restriction and allows a product 
not previously permitted. Thus, the Commission believes it is 
appropriate for the rule to become effective upon publication in the 
Federal Register.

G. Impact on Small Business

    The NPR discussed the Commission's assessment of the impact that a 
rule to exempt propellant devices for use with small rocket-powered 
model cars like the ``Blurzz'' might have on small businesses. Because 
the exemption would relieve manufacturers from existing restrictions, 
the Commission concluded that the proposed exemption would not have a 
significant impact on a substantial number of small businesses or other 
small entities. No comments or additional information alter that 
conclusion.

H. 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 proposed exemption. 
As discussed in the NPR, the Commission concluded that the rule would 
have no adverse effect on the environment, and therefore, neither an 
environmental assessment nor an environmental impact statement is 
required.

I. Executive Orders

    According to Executive Order 12988 (February 5, 1996), agencies 
must state in clear language the preemptive effect, if any, of new 
regulations.
    The FHSA provides that, generally, if the Commission issues a 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

[[Page 4699]]

the requirement established under such regulations.'' 15 U.S.C. 
1261n(b)(1)(B). (The FHSA also provides for the state or political 
subdivision of a state to apply for an exemption from preemption if 
certain requirements are met.) Thus, the rule exempting model rocket 
propellant devices for use with certain surface vehicles will preempt 
non-identical requirements for such propellant devices.
    The Commission has also evaluated the 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.

List of Subjects in 16 CFR Part 1500

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

Conclusion

    For the reasons stated above, the Commission concludes that, with 
the requirements stated in the exemption, model rocket propellant 
devices to propel small rocket-powered cars like the ``Blurzz'' require 
inclusion of a hazardous substance in order to function, have 
sufficient directions and warnings for safe use, and are intended for 
children who are mature enough that they may reasonably be expected to 
read and heed the directions and warnings. 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 1500.85 is amended by adding a new paragraph (a)(14) to 
read as follows:


Sec.  1500.85  Exemptions from classification as banned hazardous 
substances.

    (a) * * *
    (14) Model rocket propellant devices (model rocket motors) designed 
to propel rocket-powered model cars, provided--
    (i) Such devices:
    (A) Are designed to be ignited electrically and are intended to be 
operated from a minimum distance of 15 feet (4.6 m) away;
    (B) Contain no more than 4 g. of propellant material and produce no 
more than 2.5 Newton-seconds of total impulse with a thrust duration 
not less than 0.050 seconds;
    (C) Are constructed such that all the chemical ingredients are pre-
loaded into a cylindrical paper or similarly constructed non-metallic 
tube that will not fragment into sharp, hard pieces;
    (D) Are designed so that they will not burst under normal 
conditions of use, are incapable of spontaneous ignition, and do not 
contain any type of explosive or pyrotechnic warhead other than a small 
recovery system activation charge;
    (E) Bear labeling, including labeling that the devices are intended 
for use by persons age 12 and older, and include instructions providing 
adequate warnings and instructions for safe use; and
    (F) Comply with the requirements of 16 CFR 1500.83(a)(36)(ii and 
iii); and
    (ii) The surface vehicles intended for use with such devices:
    (A) Are lightweight, weighing no more than 3.0 oz. (85 grams), and 
constructed mainly of materials such as balsa wood or plastics that 
will not fragment into sharp, hard pieces;
    (B) Are designed to utilize a braking system such as a parachute or 
shock absorbing stopping mechanism;
    (C) Are designed so that they cannot accept propellant devices 
measuring larger than 0.5'' (13 mm) in diameter and 1.75'' (44 mm) in 
length;
    (D) Are designed so that the engine mount is permanently attached 
by the manufacturer to a track or track line that controls the 
vehicle's direction for the duration of its movement;
    (E) Are not designed to carry any type of explosive or pyrotechnic 
material other than the model rocket motor used for primary propulsion;
    (F) Bear labeling and include instructions providing adequate 
warnings and instructions for safe use; and
    (G) Are designed to operate on a track or line that controls the 
vehicles' direction for the duration of their movement and either 
cannot operate off the track or line or, if operated off the track or 
line, are unstable and fail to operate in a guided fashion so that they 
will not strike the operator or bystanders.
* * * * *

    3. Section 1500.83(a)(36)(i) is revised to read as follows:


Sec.  1500.83  Exemptions for small packages, minor hazards, and 
special circumstances.

    (a) * * *
    (36) * * *
    (i) The devices are designed and constructed in accordance with the 
specifications in Sec.  1500.85(a)(8), (9) or (14);
* * * * *

    Dated: January 27, 2003.
Todd Stevenson,
Secretary, Consumer Product Safety Commission.

Appendix to Preamble--List of Relevant Documents

1. Briefing memorandum from Terrance R. Karels, Directorate for 
Economic Analysis, to the Commission, ``Exemption from 
Classification as Banned Hazardous Substances Rocket-powered Model 
Cars, January 13, 2003.
2. Memorandum from Joyce McDonald, Hazard Analysis Division, to 
Terrance R. Karels, ``Model Rocket Car Petition,'' October 18, 2002.
3. Memorandum from Sharon R. White, Directorate for Engineering 
Sciences, Division of Human Factors, to Terrance R. Karels, 
``Responses to Comments on Briefing Package concerning Centuri 
Corporation's Petition for Exemption of Model Rocket Propellant 
Devices for Surface Vehicles, HP 01-02,'' September 6, 2002.
4. Memorandum from Troy W. Whitfield, Directorate for Engineering 
Sciences, to Terrance R. Karels, ``Rocket Powered Model Cars--Public 
Comment,'' September 12, 2002.
5. Memorandum from Terrance R. Karels, Directorate for Economic 
Analysis, to Files, ``Rocket powered cars,'' May 8, 2002.
6. Memorandum from Terrance R. Karels, Directorate for Economic 
Analysis, to Patricia M. Pollitzer, Office of General Counsel, 
``Rocket-powered Model Cars--Economic Considerations,'' December 20, 
2002.
7. Memorandum from Jason R. Goldsmith, Ph.D., Division of Health 
Sciences, to Terrance R. Karels, ``Rocket-Powered Model Cars--
Response to Comments,'' October 17, 2002.
[FR Doc. 03-2205 Filed 1-29-03; 8:45 am]
BILLING CODE 6355-01-P