Requirements for Clacker Balls; Amendments

CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1500

Requirements for Clacker Balls; Amendments

AGENCY: Consumer Product Safety Commission.

ACTION: Final rule.

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SUMMARY: The Commission amends its existing regulation, under the

Federal Hazardous Substances Act, that bans clacker balls that do not

meet specified requirements. The amendments include revising the

definition of clacker ball to exclude those devices where the balls are

suspended by plastic rods that are integrally molded to the balls and

are mounted on a pivot so that movement of the balls is essentially

limited to a single plane. The amendments also exempt from the ban

those clacker balls that meet specified maximum ball-weight and cord-

length specifications and a minimum safety factor specification. The

amendments clarify the regulation and benefit consumers, manufacturers,

importers, distributors, and retailers by allowing the marketing of

currently-banned products that do not present the unreasonable risk of

injury the ban was intended to prevent.

DATES: The amendments are effective March 25, 1994.

FOR FURTHER INFORMATION CONTACT: Frank Krivda, Division of Regulatory

Management, Consumer Product Safety Commission, Washington, DC 20207;

telephone (301) 504-0400.

SUPPLEMENTARY INFORMATION:

A. Background

The Commission's regulations, issued under the Federal Hazardous

Substances Act (``FHSA''), 15 U.S.C. 1261-1277, ban clacker balls

(defined in 16 CFR 1500.18(a)(7)), unless the clacker balls meet the

requirements in 16 CFR 1500.86(a)(5). The regulations define clacker

balls as consisting of two balls of plastic or another material

connected by a length of line or cord or similar connector * * *

intended to be operated in a rhythmic manner by an upward and downward

motion of the hand so that the two balls will meet forcefully at the

top and bottom of two semicircles thus causing a ``clacking'' sound,

which toys present a mechanical hazard because their design or

manufacture presents an unreasonable risk of personal injury from

fracture, fragmentations, or disassembly of the toy and from propulsion

of the toy or its part(s). (But see Sec. 1500.86(a)(5))

These requirements were issued in 1971 by the Food and Drug

Administration, which administered the FHSA at that time.

The criteria in Sec. 1500.86(a)(5) were designed to ensure the

safety of the type of clacker ball that was on the market before the

regulation was issued in 1971. This type of clacker ball used balls

that were relatively large and heavy, and the balls were mounted on

flexible cords. The criteria include an impact test for the balls and

strength tests for the cords and attachment points.

In August of 1989, Mr. William Hones of Fascinations Toys and

Gifts, Inc., petitioned the Commission to amend its requirements for

clacker balls to exclude products that (1) mechanically restrict the

motion of the balls to a plane perpendicular to a supporting shaft and

(2) withstand impact and centrifugal stresses at least 10 times those

produced in normal use. [1, Tab A]1 The petitioner marketed a

product similar to a clacker ball but that operated in the manner that

would be excluded by the requested amendment.

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\1\Numbers in brackets represent the number of a relevant

document in Appendix 1 (List of Relevant Documents) at the end of

this notice.

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The device marketed by the petitioner mounted the balls by

integrally molding them onto the apex of a V-shaped plastic member

mounted so that the arms of the V pivot on a shaft. This mounting

limits the movement of the balls to a single plane that is

perpendicular to the axis of the shaft. Compared to the pre-1972 type

of clacker balls, the petitioner's product had lighter balls and

shorter mounting arms. Because of this, the petitioner's product did

not generate the impact or centrifugal forces that the earlier clacker

balls did. The Commission's staff agreed that the criteria of

Sec. 1500.18(a)(5) vastly exceeded the stresses generated by

petitioner's device and by various other brands and types of clacker

balls that were on the market.

After considering the petition, the Commission decided that the

term ``clacker ball'' did not encompass the product marketed by the

petitioner and similar products. The Commission (3-0) also directed the

staff to prepare, for the Commission's consideration, a draft Federal

Register notice that would propose to amend the definition of clacker

ball to explicitly exclude petitioner's and similar products and to

amend Sec. 1500.86(a)(5) to exempt clacker balls meeting maximum ball-

weight and cord-length specifications and a minimum safety factor

specification. On June 25, 1993, the Commission published proposed

amendments in the Federal Register. 58 FR 34385. The period for public

comment on the proposal ended on September 8, 1993; no comments were

received.

B. Procedure

A regulation such as the Commission's clacker ball regulation is

issued under section 3(e) of the FHSA, 15 U.S.C. 1262(e), which applies

to determinations that a toy or other article intended for use by

children presents a mechanical, electrical, or thermal hazard and is

thus a hazardous substance pursuant to section 2(f)(1)(D), 15 U.S.C.

1261(f)(1)(D). The original issuance of such a regulation would be

governed by the procedure in section 3(f) of the FHSA, 15 U.S.C.

1262(f), which specifies a three-stage rulemaking procedure that is

initiated by the publication of an advance notice of proposed

rulemaking (``ANPR''). The amendments issued below, however, eliminate

from the scope of the rule those products that do not present the

mechanical risk that the regulation originally intended to cover.

Accordingly, since new obligations are not being imposed, sections 3

(e) and (f) do not apply. In addition, the provisions of section 3(f)

governing the required content of the ANPR show that the ANPR is

intended to apply only to cases where new requirements are being

imposed and not to the case where previously covered products are being

exempted or otherwise released from coverage. Therefore the two-stage

rulemaking procedures of the Administrative Procedure Act, 5 U.S.C.

553, apply.

C. The Amendments

Amended Sec. 1500.18(a)(7). As explained above, the device marketed

by the petitioner was mounted on plastic rods so that the balls move

only in a single plane. This prevents off-center hits of the balls, and

the limitation to ``plastic'' material should limit any likelihood of

loose particles caused by flaking or fragmentation of the balls. The

Commission determined that the definition of clacker ball did not cover

the petitioner's device, or similar devices with these features.

Therefore, the amendments add language specifically stating that the

definition of clacker ball ``does not include products that are

constructed such that the connecting members consist of plastic rods

integrally molded to the balls and are mounted on a pivot so that

movement of the balls is essentially limited to a single plane.''

Amended Sec. 1500.86(a)(5). As discussed above, the Commission

concluded that the criteria in the current exemption in

Sec. 1500.86(a)(5) are too stringent for the lighter and smaller

clacker balls that are currently on the market, which have balls with

masses of less than 12 grams each and pivot lengths of less than 180 mm

(7.1 inches). Accordingly, the staff examined how the exemption

criteria might be changed so that they would be more appropriate for

these lighter and smaller clacker balls. The criteria that must be

changed in order to do this are (1) The cord-strength requirement of

Sec. 1500.86(a)(5)(i)(B), (2) the ball-impact test in

Sec. 1500.86(a)(5)(ii)(B), (3) the cord-strength test of

Sec. 1500.86(a)(5)(ii)(D), and (4) the holding-device strength test of

Sec. 1500.86(a)(5)(ii)(E). These criteria are discussed separately

below. How the formulae for adjusting these factors were derived is

explained in detail in the report ``Engineering Analysis Supporting

Proposed Amendments to the Clacker Ball Regulation at 16 CFR Sections

1500.18(a)(7) and 1500.86(a)(5),'' Scott R. Heh, CPSC Directorate for

Engineering Sciences, December 1992 [6, Tab B]. For clacker balls with

masses of 12 grams or more, or with pivot lengths of 180 mm or more,

the current provisions of the regulation will continue to apply.

Cord-strength test. The staff calculated the safety factor that the

current regulation applied to the large and heavy clacker balls that

the regulation was intended to address and determined that it provides

a cord-strength safety factor, for those clacker balls, of

approximately 35. Therefore, this safety factor was also applied to the

reduced forces proposed to be allowed when testing the cord strength of

smaller and lighter clacker balls.

The tensile forces applied to the cord of a clacker ball during use

are mainly due to the centrifugal forces generated by the motion of the

balls. The centrifugal force of an object is equal to the mass of the

object times its acceleration, which in turn is a function of the

velocity of the object and the radius of the curve being traveled by

the object. The velocity of the ball is established by specifying a

maximum ``clack'' rate of 20 clacks per second. (As specified in the

definition of clacker ball at Sec. 1500.18(a)(7), a clack is produced

when the two balls collide at the top and bottom of their semicircular

paths. The highest clack rate that the Commission's staff was able to

achieve in testing was 17 clacks per second.)

Applying the safety factor of 35, the adjusted cord strength value

in Newtons can be calculated by 0.1382(mb)(Rp), where mb

is the mass of a single ball in grams and Rp is the radius of the

arc described by the ball (pivot length) in mm. Accordingly, the

Commission is amending the regulation as set forth below so that this

adjusted cord strength value will be one of the criteria for exempting

the smaller and lighter clacker balls described above.

Ball-impact test. The current regulation provides that a clacker

ball shall be tested by 10 drops of a 5-lb steel weight from a height

of 48 inches. The Commission's staff determined that this provides a

safety factor of about 20 for the large and heavy clacker balls for

which the test was designed.

The clacker ball experiences an impact related to the magnitude of

the kinetic energy it achieves in use, which is a function of the mass

of the clacker ball times its velocity. The velocity can be calculated

from the ``clack rate,'' which, as described above, is assumed to be 20

clacks per second. Accordingly, the height from which a 5-lb weight

must be dropped in order to achieve an impact equal to what the clacker

ball can generate, times the safety factor of 20, can be calculated as

179 x 10-5(mb)(Rp2), where mb is the mass of a

single ball in grams and Rp is the radius of the arc described by

the ball (pivot length) in mm. Accordingly, the Commission amends its

regulations to allow this adjusted drop height value to be one of the

criteria for exempting the smaller and lighter clacker balls described

above.

Holding device test force. Present Sec. 1500.86(a)(5)(ii)(E)

provides that the device for holding the cords together shall be tested

by applying a force of 50 lb to each cord separately, while the holding

device is clamped in position. Since this is half the force provided by

the current regulation for the cord-strength test, the Commission

amends its regulations to allow an adjusted holding device test force

of half the adjusted cord-strength test force, to exempt the smaller

and lighter clacker balls described above.

D. Metric Units

Current Federal policy encourages the use of metric units in

regulations. Exec. Order No. 12770, 3 CFR, 1991 Comp., p. 343.

Accordingly, wherever current Sec. 1500.86(a)(5) uses inch/pound units

that can be specified instead in metric units, the amendments proposed

below give the corresponding metric units as the primary criteria,

with the inch/pound equivalent in parentheses.

E. Correction

The exemptions at Sec. 1500.86(a)(5) have a typographical error in

the table in Sec. 1500.86(a)(5)(vi). The word ``rental'' in the heading

of the first column should be ``retail.'' Accordingly, the amendments

issued below correct this discrepancy.

F. Effective Date

This amendment grants an exemption. A delayed effective date of 30

days from the date a final rule is issued will be sufficient for

parties to test their products to determine whether the products comply

with the amended regulation. Accordingly, these amendments will become

effective March 28, 1994.

G. Regulatory Flexibility Act Certification

When an agency undertakes a rulemaking proceeding, the Regulatory

Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601 et seq.) generally

requires the agency to prepare initial and final regulatory flexibility

analyses describing the impact of the rule on small businesses and

other small entities. The purpose of the Regulatory Flexibility Act, as

stated in section 2(b) (5 U.S.C. 602 note), is to require agencies,

consistent with their objectives, to fit the requirements of

regulations to the scale of the businesses, organizations, and

governmental jurisdictions subject to the regulations. Section 605 of

the Act provides that an agency is not required to prepare a regulatory

flexibility analysis if the head of the agency certifies that the rule

will not have a significant economic impact on a substantial number of

small entities.

The Commission's Directorate for Economics prepared Initial and

Final Regulatory Flexibility Act Analyses to examine the effect of the

rule on small entities. [6, Tab D; 8, Tab D] The findings of the Final

Regulatory Flexibility Analysis are repeated below.

The potential cost of the rule includes the possibility of future

injury or death associated with these products, if that were due to

less safe clacker balls being on the market because the exemption

criteria of the regulation were made less stringent. The Commission has

no information that would support a conclusion that this will occur.

The Commission is aware of 13 incidents from January 1, 1973,

through 1992 that were associated with clacker balls. [6, Tab C] Three

of these incidents involved fatalities. In one of these fatal

incidents, a child strangled when she got the cord of a clacker ball

around her neck. In the two others, infants were asphyxiated when

clacker balls obstructed their airways. Such strangulation and

asphyxiation hazards are not addressed by the current requirements for

clacker balls.

The remaining 10 incidents involved injuries incurred when users

were hit with clacker balls (4), fell on clacker balls (2), or ingested

a piece of broken clacker ball (1), or involved a burn (1) or

poisonings (2) associated with clacker balls that made a cracking sound

and emitted smoke when the balls struck each other. None of these

incidents is known to be due to any deficiency in the clacker balls'

impact resistance, cord strength, or holding-device strength.

Based on the available epidemiological and engineering information,

no potential injuries or deaths are expected to be associated with the

amended definition and exemption. Accordingly, no significant costs are

expected to be associated with these changes.

The amended definition and exemption will provide benefits to

marketers of the product by allowing the continued marketing of these

products as toys and novelties. Marketers would also benefit through an

elimination of any uncertainty about enforcement of the existing

regulations, and the regulation's effects on future product development

would be clarified. The marketers would also benefit by avoiding any

cost increases that would be caused by having to come into compliance

with the present regulation.

Consumers obtain utility from the use of these products. Sales in

1990 of products similar to the petitioner's are estimated at 10-12

million units, which were valued at $25-30 million. Sales in 1991

declined to about one million units, and 1992 sales were around two

million units. Sales of lightweight, short-cord clacker balls are

thought to be insignificant compared to the number of products like the

petitioner's that are marketed. However, the available information is

not sufficient to enable an accurate estimate. To the extent that

consumers enjoy the use of these products, their continued availability

is a benefit, and the loss of this product on the market would be a

loss to consumers.

All the firms known to be currently marketing these products are

small firms. The rule is expected to have a positive impact on these

firms.

For the reasons given above, the Commission concludes that the

amendments to the Commission's regulations for clacker balls, issued

below, will not have any significant adverse economic effect on a

substantial number of small entities.

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 preliminarily

assessed the possible environmental effects associated with the

proposed amendments to the clacker ball regulations. [6, Tab D] Because

that assessment found that there were no significant environmental

effects from the rule, no final assessment is required.

List of Subjects in 16 CFR Part 1500

Consumer protection, Hazardous materials, Hazardous substances,

Imports, Infants and children, Labeling, Law enforcement, Toys.

I. Conclusion

For the reasons given above, the Commission amends 16 CFR part 1500

as follows:

PART 1500--[AMENDED]

1. The authority citation for part 1500 is revised to read as

follows:

Authority: 15 U.S.C. 1261-1277.

2. Section 1500.18(a)(7) is amended by replacing the second

sentence with two new sentences to read as follows:

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

children.

* * * * *

(a) * * *

(7) * * * (But see Sec. 1500.86(a)(5).) This does not include

products that are constructed so that the connecting members consist of

plastic rods integrally molded to the balls and are mounted on a pivot

so that movement of the balls is essentially limited to a single plane.

* * * * *

Sec. 1500.86 [AMENDED]

3. Section 1500.86(a)(5)(i)(B) is amended by:

a. Replacing ``100 pounds'' with ``445 Newtons (100 pounds)'' and

b. Adding a new sentence at the end of the paragraph, to read as

follows:

Sec. 1500.86 Exemptions from classification as a banned toy or other

banned article for use by children.

(a) * * *

(5) * * *

(i) * * *

(B) * * * Clacker balls where the mass of each ball is less than 12

grams (0.42 oz.) and the distance between the center of the pivot and

the center of the ball cannot exceed 180 mm (7.1 inches) may have a

minimum cord breaking strength of less than 445 Newtons (100 pounds),

as computed by the following formula:

Adjusted Cord Breaking Strength in Newtons=0.1382(mb)

(Rp), where mb=mass of a single ball in grams and

Rp=pivot length in mm.

* * * * *

4. Section 1500.86(a)(5)(ii)(B) is amended by:

a. Replacing ``5-pound'' with ``2.25 kg (5-pound)''

b. Replacing ``2\1/4\-inch'' with ``57-mm (2\1/4\-inch)

c. Replacing ``48 inches'' with ``1220 mm (48 inches)''

d. Replacing ``2\3/8\-inch with ``60-mm (2\3/8\-inch)'' and

e. Adding a sentence after the first sentence and before the last

sentence, to read as follows:

Sec. 1500.86 Exemptions from classification as a banned toy or other

banned article for use by children.

(a) * * *

(5) * * *

(ii) * * *

(B)* * * Clacker balls where the mass of each ball is less than 12

grams (0.42 oz.) and the distance between the center of the pivot and

the center of the ball cannot exceed 180 mm (7.1 inches) may be tested

by dropping the impact weight from a height of less than 1220 mm (48

in.), where the height is computed as follows:

Adjusted drop height in mm=179 x 10-5(mb)

(Rp2), where mb=mass of a single ball in grams and

Rp=pivot length in mm. * * *

* * * * *

5. Section 1500.86(a)(5)(ii)(D) is amended by:

a. Replacing ``100-pound'' with ``445-Newton (100-pound)'' and

b. Adding two sentences before the last sentence, to read as

follows:

Sec. 1500.86 Exemptions from classification as a banned toy or other

banned article for use by children.

(a) * * *

(5) * * *

(ii) * * *

(D) * * * Clacker balls where the mass of each ball is less than 12

grams (0.42 oz.) and the distance between the center of the pivot and

the center of the ball cannot exceed 180 mm (7.1 inches) may be tested

with a force of under 445 Newtons (100 pounds). The test force for

these clacker balls shall be the same as the cord breaking strength

calculated in Sec. 1500.86(a)(5)(i)(B). * * *

* * * * *

6. Section 1500.86(a)(5)(ii)(E) is amended by:

a. Replacing ``50-pound'' with ``222-Newton (50-pound)'' and

b. Adding two sentences after the first sentence and before the

last sentence, to read as follows:

Sec. 1500.86 Exemptions from classification as a banned toy or other

banned article for use by children.

(a) * * *

(5) * * *

(ii) * * *

(E) * * * Clacker balls where the mass of each ball is less than 12

grams (0.42 oz.) and the distance between the center of the pivot and

the center of the ball cannot exceed 180 mm (7.1 inches) may have their

holding device tested with a force of less than 222 Newtons (50

pounds). The holding device test force for these clacker balls shall be

half of the cord breaking strength calculated in

Sec. 1500.86(a)(5)(i)(B). * * *

* * * * *

Sec. 1500.86 [Amended]

7. Section 1500.86(a)(5)(iv)(C) is amended by:

a. Replacing ``one-quarter inch'' with ``6 mm (\1/4\ inch)'' and

b. Replacing ``one-eighth inch'' with ``3 mm (\1/8\ inch)''.

8. Section 1500.86(a)(5)(vi) is amended by replacing ``rental'' in

the heading of the first column of the table with ``retail''.

Dated: February 18, 1994.

Sadye E. Dunn,

Secretary, Consumer Product Safety Commission.

Appendix 1--List of Relevant Documents

(This Appendix will not be printed in the Code of Federal

Regulations.)

1. Briefing Package--Petition HP 90-2--Clacker Balls: Executive

Summary and briefing memorandum ``Petition HP 90-2: Clacker Balls,''

John D. Preston, Project Manager, CPSC Directorate for Engineering

Sciences, dated Jan. 27, 1992, with Tabs A, C, and F-J.

TAB A--Petition.

TAB C--Photograph of petitioner's clacker ball.

TAB F--Memorandum from Debbie Tinsworth, CPSC/EPHA, to John

Preston, CPSC/ESME, ``Clacker Ball Incident Data,'' April 18, 1991.

TAB G--Memorandum from Terrance R. Karels, CPSC/ECPA to John

Preston, Project Manager, ``Clacker Ball Petition, HP 90-2,'' July

23, 1991.

TAB H--Memorandum from John Preston, CPSC/ESME, ``Petition HP

90-2, Clacker Balls,'' October 4, 1991.

TAB I--Memorandum from Bob Poth, CPSC/CERM, to John Preston,

Project Manager, CPSC/ESME, ``Background of CE Action on `Newton's

Yo-Yo','' Sept. 18, 1991.

TAB J--Proposed Enforcement Policy.

2. Tape recording of Commission briefing on March 25, 1992.

3. Memorandum from John Preston, Project Manager, to the

Commission, ``Response to Commission Request for Options and

Resource Estimates to Respond to the Clacker Ball Petition,'' June

5, 1992, with revised vote sheet.

4. Commissioners' ballot vote sheets, signed June 29-30, 1992.

5. Letter from the Commission's Secretary to Mr. William G.

Hones, President of Fascinations Toys and Gifts, Inc., dated Sept.

23, 1992.

6. Briefing package ``Proposed Amendments to the Clacker Ball

Regulation at 16 CFR Sections 1500.18(a)(7) and 1500.86(a)(5),''

consisting of Executive Summary, briefing memorandum, and Tabs A-E.

Briefing Memorandum, ``Proposed Rule Amending the Clacker Ball

Regulation at 16 CFR Sec. 1500.18(a)(7) and Sec. 1500.86(a)(5),''

April 13, 1993.

TAB A--Photographs of products.

TAB B--Engineering report from Scott Heh, ESME, ``Engineering

Analysis Supporting Proposed Amendments to the Clacker Ball

Regulation at 16 CFR Sections 1500.18(a)(7) and 1500.86(a)(5),''

December 17, 1992.

TAB C--Memorandum from Suzanne P. Cassidy, EPHA, ``Injuries and

Deaths Associated with Clacker Balls,'' Feb. 1, 1993.

TAB D--Memorandum from A. Homan, ECPA, to Scott R. Heh, ESME,

``Regulatory Flexibility and Regulatory Analyses, Economic and

Environmental Assessments: Proposed Amendments to the Clacker Ball

Regulations,'' December 10, 1992.

TAB E--Draft Federal Register notice.

7. 58 FR 34385 (June 25, 1993).

8. Briefing memorandum from Scott Heh, Project Manager, to the

Commission, ``Final Rule Amending the Clacker Ball Regulation at 16

C.F.R. Sections 1500.18(a)(7) and 1500.86(a)(5), with Tabs A-E,

dated January 19, 1994:

TAB A--Photographs of Products.

TAB B--Memorandum from Suzanne Cassidy EPHA, to Scott Heh,

Project Manager, ``Injuries and Deaths Associated with Clacker

Balls,'' dated February 1, 1993.

TAB C--Memorandum from Suzanne Cassidy, EPHA, to Scott Heh,

Project Manager, ``Data Update on Injuries and Deaths Associated

with Clacker Balls,'' dated November 4, 1993.

TAB D--Memorandum from A. Homan, ECPA, ``Regulatory Flexibility

and Regulatory Analyses, and Economic Assessments: Final Regulatory

Amendments to the Clacker Ball Regulation,'' dated December 1, 1993.

TAB E--Draft Federal Register notice.

[FR Doc. 94-4359 Filed 2-24-94; 8:45 am]

BILLING CODE 6355-01-P