Plastic Buckets; Withdrawal of Advance Notice of Proposed Rulemaking

CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1307

Plastic Buckets; Withdrawal of Advance Notice of Proposed

Rulemaking

AGENCY: Consumer Product Safety Commission.

ACTION: Withdrawal of advance notice of proposed rulemaking.

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SUMMARY: The Consumer Product Safety Commission has voted to terminate

a proceeding to develop a rule addressing risks of injury and death

associated with certain 5 gallon plastic buckets.1 The Commission

initiated the proceeding when it published an advance notice of

proposed rulemaking (``ANPR'') on July 8, 1994. 59 FR 35058. On

February 8, 1995, the Commission voted to terminate the proceeding and

withdraw the ANPR. As explained below, the Commission determined that

based on information available at this time, rulemaking is not

warranted.

\1\The Commission voted to issue this termination notice with

Chairman Ann Brown and Commissioner Mary Gall voting in favor of

issuing the notice. Commissioner Thomas Moore abstained from voting

on this implementing notice because he did not participate in the

previous decision to withdraw the ANPR.

FOR FURTHER INFORMATION CONTACT: Celestine Trainor, Directorate for

Epidemiology, Division of Human Factors, Consumer Product Safety

Commission, Washington, D.C. 20207; telephone (301) 504-0468.

SUPPLEMENTARY INFORMATION:

A. Background

In July 1989, the Commission first learned of a drowning hazard

associated with certain large buckets or bucket-like containers. These

drownings occurred when a child leaned over the bucket and fell in head

first. Children have drowned in a very small amount of liquid. Because

of their shape, size, and sturdiness, the buckets do not tip over,

[[Page 29519]] nor can toddlers who have fallen into the buckets

extricate themselves.

Upon learning of such incidents, the Commission issued a Safety

Alert in July 1989 warning consumers of the potential drowning hazard

associated with this product. The Commission also contacted the major

trade associations representing manufacturers and fillers of buckets.

These trade associations formed the Coalition for Container Safety and

developed an information and education program that included

distribution to consumers of free self-adhesive warning labels and

production of a video news release.

The Commission staff also worked with ASTM subcommittee F15.31 on

voluntary standards for 5-gallon buckets. In 1993, ASTM approved an

emergency standard for labeling of buckets to address the drowning

hazard, and a final ASTM standard for labeling is in process. In

addition, an ASTM subcommittee task group pursued the possibility of

developing a draft performance standard. After considering various

options, subcommittee members stated at a March 17, 1994 meeting that

they did not believe a performance standard was feasible and that they

would continue to vote against it. Subsequent subcommittee and task

force meetings did not progress any further toward a voluntary

performance standard.

On July 8, 1994, the Commission published an ANPR explaining that

it was beginning a proceeding to address the hazard of drowning

associated with 5-gallon plastic buckets and that a range of options

were open to the Commission to address this hazard. 59 FR 35058, 35062.

B. Statutory Authority

The Commission initiated the rulemaking proceeding under the

Consumer Product Safety Act (``CPSA''). 15 U.S.C. 2051-2084. Sections

7, 8 and 9 of the CPSA set forth the requirements that the Commission

must follow to issue safety regulations. 15 U.S.C. 2056, 2057 and 2058.

The July 8, 1994 ANPR was the first step required in the rulemaking

process. In accordance with section 9(a) of the CPSA, the ANPR

described the product, explained the nature of the risk of injury,

summarized the possible regulatory alternatives, and discussed existing

relevant standards. The ANPR also invited interested persons to submit

(i) comments concerning the risk of injury; (ii) an existing standard

or portion of a standard to be developed as a proposed rule; and (iii)

a statement of intention to modify or develop a voluntary standard that

would address the risk of injury associated with plastic buckets. 15

U.S.C. 2058(a). The Commission received 84 comments in response to the

ANPR.(2)2

\2\Numbers in parentheses refer to documents listed at the end

of this notice.

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C. The Product

As explained in the ANPR, this proceeding covers certain buckets,

referred to as ``5-gallon plastic buckets.'' They are open-head buckets

with a rated capacity of 4\1/2\ to 5\1/2\ gallons and are generally 14

inches high and 10.25 to 11.25 inches in diameter. They have

practically straight sides and are manufactured of high density

polyethylene. These buckets are used to package and transport such

industrial, commercial and consumer products as chemicals, cleaning

substances, foods, paints and construction materials. Consumers obtain

the buckets when they purchase consumer goods, like paint or detergent,

packaged in the buckets, when they carry the buckets away from job

sites, or when they purchase them empty. The ANPR described the bucket

industry based on a study conducted by the Freedonia Group, Inc. That

study estimated that by 1997, 175 million open-head plastic buckets

will be produced annually.(1)

D. Risks of Injury and Death

Incident scenarios usually involved an unwitnessed event when a

child leaned over the bucket and fell in head first.

Of the 112 fatal incidents which CPSC staff investigated, the

location of the caregiver could be determined in 93 of the cases. In 91

of these incidents, the caregiver was not in the same room with the

victim.(12)

Of the 19 investigations of ``near-miss'' situations where the

victims survived, the location of the caregiver was known in 16 of

these cases. In 13 of these incidents, the caregiver was not in the

same room with the victim.(12)

Between January 1984 and January 1995, the Commission has received

reports of 247 deaths and 32 non-fatal incidents associated with 5-

gallon buckets. The estimated annual average number of deaths for the

years 1990, 1991, and 1992, is about 36, a slight reduction from the

annual average estimate of about 40 for the years 1990 and 1991. The

ages of the victims ranged from 7 to 24 months, with a median age of 11

months. Sixty percent of the victims were male. Height and weight of

the victims, when reported, averaged about 28 inches and 22 pounds,

respectively. Where race/ethnicity was reported, minority groups

accounted for about 70% of those incidents.(4)

All but one of the incidents in which the bucket material was

reported involved plastic buckets--the other was metal. In 35

incidents, the bucket material was not known. In cases where the

buckets' measurements were known, over 90% were 5-gallon buckets,

usually 14 to 15 inches high, with diameters of about 12 inches. The

average height of the liquid in the buckets was about 6 inches.(4)

E. Existing Standards

As discussed above, ASTM formed subcommittee F15.31 to address

hazards associated with buckets. In July 1993, ASTM approved ES 26-93,

an emergency labeling standard for 5-gallon plastic buckets. The

standard requires that 5-gallon open-head buckets have a specified

label at the time they are sold or delivered to the end user or, if the

bucket is intended to be sold empty, when shipped to a retailer for

sale. The label must be difficult to remove and must not be covered,

obstructed or removed by distributors or retailers. The placement,

size, layout, and wording of the label are specified. The label

contains a pictorial along with the words: ``Children can fall into

bucket and drown'' followed by the words ``Keep children away from

bucket with even a small amount of liquid.'' The label may be modified

to include additional languages.(8) ASTM is in the process of making

this a final standard. The ASTM subcommittee also examined the

possibility of a performance standard, but as of this time, has not

developed one.(1)

In addition, as discussed in the ANPR, California has a law, in

effect since September 1993, that requires a warning label on 5-gallon

buckets intended for use, sale, or distribution within the state. Also,

as discussed in the ANPR, there are several standards that establish

criteria for handling and shipping of buckets, but these standards do

not address the child-drowning hazard.(1)

F. Industry's Labeling, Information and Education Campaign

Following publication of the ANPR, industry substantially increased

its efforts with respect to labeling and information and education. A

substantial number of 5-gallon plastic buckets are now being labeled in

conformance to the ASTM labeling standard described above. According to

a letter dated January 17, 1995 from counsel for five major bucket

manufacturers, 80% of the buckets manufactured by those companies were

[[Page 29520]] being labeled in accordance with the ASTM standard, and

that compliance would increase in the coming months. The letter stated

that these five companies comprise approximately 90% of the U.S. bucket

market.(9)

These five manufacturers also initiated an education and

information program warning of the drowning hazard associated with

plastic buckets. In late fall of 1994, they issued an audio news

release and an audio public service announcement. They are in the

process of producing a large color poster to be widely distributed

through key safety, health and other organizations. As of February 8,

1995, these firms had committed or spent approximately $250,000 on the

campaign, and their counsel represented that the firms are committed to

continuing the campaign over the next 2\1/2\ years, spending

approximately an additional $250,000.(9)

G. Action by the Commission

On February 8, 1995, the Commission held an oral briefing to have

the staff provide an update on this proceeding. After considering the

issues and information discussed above, the Commission determined that

rulemaking is not warranted. Accordingly, the Commission voted to

terminate the proceeding and withdraw the ANPR issued on July 8, 1994.

In withdrawing the ANPR, the Commission is not relying on a voluntary

standard under section 9 of the CPSA. See 15 U.S.C. 2064 and 16 CFR

1115.5. As discussed below, the two Commissioners differed in the

reasoning behind their common conclusion that rulemaking is

unwarranted.

Chairman Ann Brown stated: ``In view of the progress made by the

bucket industry in placing English and Spanish warning labels on five-

gallon buckets, its commitment to an ongoing information and education

campaign, the significant cost to the Commission and industry that

could result in attempting to redesign buckets to meet a performance

standard with no assurance that such a standard would be practicable

and reasonable for all buckets, or even a majority of buckets, it makes

sense to terminate the proceeding.''(10)

In her statement, the Chairman reviewed the initiation of the

proceeding and the industry's efforts involving labeling and developing

an information and education campaign. She noted the apparent success

of labeling legislation in California where, as far as the Commission

is aware, no labeled bucket-related deaths have occurred since the law

took effect. The Chairman noted that her decision was based in part on

the significant resources that would be required to address the

drowning hazard through a performance standard, noting that ``it is

best to concentrate those resources on problems that are more clearly

solvable within a reasonable period of time.'' Finally, the Chairman

encouraged industry to continue exploring alternatives to labeling that

could potentially eliminate the bucket drowning hazard.(10)

Commissioner Mary Sheila Gall observed in her statement that ``it

is clear that development of a voluntary performance standard and

prototype solutions were unworkable, despite the best efforts of

industry and our staff.'' Commissioner Gall explained that, although

industry's efforts toward labeling and an information and education

campaign were laudable, they did not form the basis of her vote to

terminate the rulemaking. Rather, Commissioner Gall found that the

drowning incidents occurred due to the absence of adult supervision.

She stated: ``It is those charged with the responsibility of caring for

young children who are creating the hazard. It is not the product.''

Commissioner Gall concluded that her vote to terminate the rulemaking

reaffirmed her position ``that the Federal government cannot mandate

changes in products as a substitute for responsible adult supervision.

The deaths of these children are inexcusable. The fact that they were

preventable is tragic.''(11)

In accordance with the Commission's decision that a rulemaking

proceeding is no longer warranted to address the drowning hazard

associated with 5-gallon plastic buckets, the Commission hereby

withdraws the ANPR published on July 8, 1994 (59 FR 35058).

Dated: May 30, 1995.

Sadye E. Dunn,

Secretary, Consumer Product Safety Commission.

Reference Documents

The following documents contain information relevant to this

rulemaking proceeding and are available for inspection at the Office

of the Secretary, Consumer Product Safety Commission, Washington,

Room 502, 4330 East-West Highway, Bethesda, Maryland 20814.

1. Federal Register notice, ``Plastic Buckets; Advance Notice of

Proposed Rulemaking; Request for Comments and Information,'' July 8,

1994 (59 FR 35058).

2. Comments received in response to Federal Register notice,

``Plastic Buckets; Advance Notice of Proposed Rulemaking; Request

for Comments and Information,'' July 8, 1994 (59 FR 35058).

3. Memorandum from Ronald L. Medford, Assistant Executive

Director, HIR, to the Commission, ``Commission Meeting on 5-Gallon

Buckets,'' February 7, 1995.

4. Memorandum from Suzanne P. Cassidy, EPHA to Celestine

Trainor, EPHF, ``Data Update of Investigated Cases Associated with

5-Gallon Buckets,'' January 20, 1995.

5. Memorandum from George Sushinsky, LSEL, to Celestine Trainor,

EPHF, ``LSEL Status Report on Performance Test Development,''

January 19, 1995.

6. Log of Meeting of ASTM F15.31 Performance Task Group, July

20, 1994.

7. Log of Meeting of ASTM F15.31, January 25, 1995.

8. ASTM ES 26-93: Standard for Specification of Cautionary

Labeling for Five Gallon Open-Head Plastic Containers (Buckets).

9. Letter from David H. Baker, Holland and Knight to Eric Rubel,

CPSC, concerning industry program, January 17, 1995.

10. Statement of Chairman Ann Brown, ``Five-gallon Buckets,''

February 8, 1995.

11. Statement of Commissioner Mary Sheila Gall, ``The

Termination of Rulemaking Proceedings Regarding Five Gallon

Buckets,'' February 8, 1995.

12. Memorandum from Suzanne P. Cassidy, EPHA to Ronald Medford,

HAR, ``Location of Caregivers (Bucket Investigations),'' April 20,

1995.

[FR Doc. 95-13597 Filed 6-2-95; 8:45 am]

BILLING CODE 6355-01-P