Dive Sticks; Advance Notice of Proposed Rulemaking; Request for Comments and Information

CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Chapter II

Dive Sticks; Advance Notice of Proposed Rulemaking; Request for

Comments and Information

AGENCY: Consumer Product Safety Commission.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The Commission has reason to believe that certain dive sticks

may present an unreasonable risk of injury. Such dive sticks are

constructed in such a manner that children can become impaled on them

when jumping into shallow water where the dive sticks are oriented in

an upright position. This impalement can result in serious injuries.

Dive sticks are one of several types of devices used for underwater

retrieval activities in swimming pools. They are typically made of

rigid plastic, and are or can be weighted so that when dropped into

water they sink and stand upright on the bottom. Dive sticks have a

variety of shapes, but many have a hollow tube cross section or a solid

X-shaped cross section. Dive sticks are sold under a variety names such

as dive sticks, diving sticks, fish sticks, sticks and batons.

This advance notice of proposed rulemaking (``ANPR'') initiates a

rulemaking proceeding that could result in a rule banning dive sticks

with certain characteristics that cause them to be hazardous. This

proceeding is commenced under the Federal Hazardous Substances Act.

The Commission solicits written comments concerning the risks of

injury associated with dive sticks, the regulatory alternatives

discussed in this ANPR, other possible ways to address these risks, and

the economic impacts of the various regulatory alternatives. The

Commission also invites interested persons to submit an existing

standard, or a statement of intent to modify or develop a voluntary

standard, to address the risk of injury described in this ANPR.

DATES: Written comments and submissions in response to this ANPR must

be received by September 14, 1999.

ADDRESSES: Comments should be mailed, preferably in five copies, to the

Office of the Secretary, Consumer Product Safety Commission,

Washington, DC 20207-0001, or delivered to the Office of the Secretary,

Consumer Product Safety Commission, Room 502, 4330 East-West Highway,

Bethesda, Maryland; telephone (301) 504-0800. Comments also may be

filed by telefacsimile to (301)504-0127 or by email to cpsc-

[email protected]. Comments should be captioned ``ANPR for Dive Sticks.''

FOR FURTHER INFORMATION CONTACT: Scott R. Heh, Directorate for

Engineering Sciences, Consumer Product Safety Commission, Washington,

DC 20207; telephone (301) 504-0494, ext. 1308.

SUPPLEMENTARY INFORMATION:

A. The Product

Dive sticks are one of several types of devices used for underwater

retrieval activities in swimming pools. They are typically made of

rigid plastic, and are, or can be weighted so that when dropped into

water they sink and stand upright on the bottom. Dive sticks have a

variety of shapes, but many have a hollow tube cross section or a solid

X-shaped cross section. Dive sticks are sold under a variety of names

such as dive sticks, diving sticks, fish sticks, sticks and batons.

The Commission's technical staff preliminarily considers a dive

stick that has all of the following characteristics to pose a hazard

for traumatic injuries to the perineum, including laceration and

perforation injuries associated with rectal and vaginal impalement:

1. The product is essentially rigid.

2. The product is weighted, or can be weighted, so that when

dropped in the water, it sinks to the bottom and stands upright.

3. The product has an elongated shape with a top end that is small

enough in cross section to concentrate the force of impact and allow

penetration of the rectum or vagina. (As examples, a hazardous dive

stick could have a cylindrical shape with a blunt end or it may have a

more pointed end, such as one product that is shaped like a shark

silhouette.)

B. The Risk of Injury

1. Description of Injury

When used in shallow water, serious rectal or vaginal impalement

injuries can occur when a child accidentally falls on or jumps

buttocks-first into the water, and lands on a dive stick. Facial and

eye injuries are also possible when a child attempts to retrieve a dive

stick under the water.

While penetrating injuries account for only a very small percentage

of traumatic injuries in children, they are severe. Falls on vertical

objects may result in traumatic injuries to the perineum. The severity

of rectal or vaginal lesions after impalement depends on the degree of

penetration by

[[Page 38388]]

the object. This in turn is dependent on the force of impact and the

physical properties of the involved object (size and surface

characteristics). The severity of injury could range from laceration of

the rectum and sphincter, to puncture wounds and tears of the colon.

High impact forces may also cause injuries to the vulva, vaginal canal,

and blood vessels beneath the perineal skin in females. In males, such

impacts may cause perforation injuries to the genitalia, urethra,

ureter and bladder. All these types of perforation and impalement

injuries in males and females require hospitalization and surgery.

Because of the septic nature of the area, the main complication

after perineum injuries is lesion infection, which may lead to abscess

and possible sepsis in extreme cases. To avoid subsequent septic

complications, the management of these pediatric injuries often

requires aggressive and drastic surgical means. Perineal injuries (with

or without rectal injury) often require fecal diversion (proximal

colostomy), wound drainage, and the use of a broad-spectrum antibiotic

in pre- and post-operative stages. The damage caused by deep

penetration into the rectal or vaginal area may have devastating

effects on children's health. In addition to long-term physiological

effects on children, these types of injuries have the potential to

cause long-lasting emotional trauma.

2. Injury Data

The Commission has learned of seven incidents in which dive sticks

caused serious injury to young children. Six of these were impalement

incidents that resulted in serious vaginal or rectal injuries. The

seventh incident was a facial laceration just below the eye. All the

victims were children ranging in age from six to nine years old. Each

of the incidents occurred with vertical-standing toy dive sticks. The

eye/facial injury was from a shark-shaped dive stick. All of the

vaginal and rectal injuries were from baton-shaped dive sticks,

approximately 7\7/8\ to 8\5/8\ inches long and \7/8\ to one inch in

diameter. The victims were injured while playing in shallow water.

Three incidents occurred in small wading pools with water levels

between 12 and 24 inches. One occurred in a spa with unknown water

depth and one in a 3-foot pool with approximately 27 inches of water.

Another incident occurred in a swimming pool with an unknown depth of

water. The incidents are as follows:

a. July 22, 1990--The 7-year-old female victim was playing with her

cousins in an above-ground swimming pool. She jumped up and out of the

water, tucked her knees to her chest to do a ``cannon ball'' jump and

re-entered the water. The victim entered the water buttocks first and

rapidly descended to the bottom of the pool, where her buttocks came in

contact with the upright, cylindrical toy dive stick. The toy dive

stick caused lacerations around the victim's rectum. No stitches were

required and the victim has recovered fully.

b. July 22, 1993--The 8-year-old girl was sitting on the edge of

her family's spa with her feet in the water. She used her arms to push

off the edge and sit on a lower step of the spa, without seeing the

vertical-standing, cylindrical toy dive stick on the same lower step.

The toy dive stick slipped past the victim's swimsuit and penetrated

her vagina. Immediate medical attention was sought, and surgery was

performed to repair multiple internal, vaginal lacerations. Additional

surgery was necessary 5 months later. No recovery records are

available.

c. July 24, 1995--The 9-year-old female victim jumped into a

swimming pool and landed on a toy dive stick causing deep vaginal

lacerations.

d. August 3, 1997--The 6-year-old female victim jumped into her

inflatable wading pool. The victim's buttocks area landed on top of the

vertical-standing, cylindrical toy dive stick. The product and the

girl's swimsuit were projected into her rectum. The victim was admitted

to a children's hospital for surgery to repair perineal and external

sphincter lacerations. The victim has recovered from the incident, but

will be examined periodically.

e. June 10, 1998--The eight-year-old female victim was playing with

her brother in a wading pool. She fell backwards in the pool, landing

on the cylindrical toy dive stick that was standing upright on the

bottom of the pool. The toy dive stick penetrated the vagina. A

physician surgically repaired the laceration with both internal and

external sutures. The victim has recovered.

f. June 28, 1998--The 7-year-old boy and his brother had been

playing with the cylindrical toy dive sticks prior to the incident. The

victim ran and jumped buttocks first into the wading pool. He impaled

himself via the rectum on a toy dive stick that was standing upright in

the water. Surgery was performed to repair a laceration of the rectum,

and a temporary colostomy was performed to repair the perforated

intestine. The victim healed, but continues to complain of abdominal

pain.

g. August 13, 1998--The 6-year-old female victim and three other

children were in a small wading pool playing with toy dive sticks that

were shaped like sharks. The victim stuck her face into the pool to

retrieve the toy dive stick and hit her face on the toy. She received a

\3/4\ inch laceration below her left eye, which required sutures to

close. The victim has recovered.

C. Relevant Statutory Provisions

This proceeding is conducted pursuant to the Federal Hazardous

Substances Act (``FHSA''), 15 U.S.C. 1261 et seq. Section 2(f)(1)(D) of

the FHSA defines ``hazardous substance'' to include any toy or other

article intended for use by children that the Commission determines, by

regulation, presents an electrical, mechanical, or thermal hazard. 15

U.S.C. 1261(f)(1)(D). An article may present a mechanical hazard if its

design or manufacture presents an unreasonable risk of personal injury

or illness during normal use or when subjected to reasonably

foreseeable damage or abuse. Among other things, a mechanical hazard

could include a risk of injury or illness ``(3) from points or other

protrusions, surfaces, edges, openings, or closures, * * * or (9)

because of any other aspect of the article's design or manufacture.''

15 U.S.C. 1261(s).

Under section 2(q)(1)(A) of the FHSA, a toy, or other article

intended for use by children, which is or contains a hazardous

substance accessible by a child is a ``banned hazardous substance.'' 15

U.S.C. 1261(q)(1)(A).

Section 3(f) through 3(i) of the FHSA, 15 U.S.C. 1262 (f)-(i),

governs a proceeding to promulgate a regulation determining that a toy

or other children's article presents an electrical, mechanical, or

thermal hazard. As provided in section 3(f), this proceeding is

commenced by issuance of this ANPR. After considering any comments

submitted in response to this ANPR, the Commission will decide whether

to issue a proposed rule and a preliminary regulatory analysis in

accordance with section 3(h) of the FHSA. If a proposed rule is issued,

the Commission would then consider the comments received in response to

the proposed rule in deciding whether to issue a final rule and a final

regulatory analysis. 15 U.S.C. 1262(i).

D. Regulatory Alternatives

One or more of the following alternatives could be used to reduce

the identified risks associated with dive sticks.

1. Mandatory rule. The Commission could issue a rule declaring

certain dive sticks to be banned hazardous substances. This rule could

define the

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banned products in terms of physical or performance characteristics, or

both.

2. Labeling rule. The Commission could issue a rule banning dive

sticks that did not contain specified warnings and instructions.

3. Voluntary standard. If the industry developed, adopted, and

conformed to an adequate voluntary standard, the Commission could defer

to the voluntary standard in lieu of issuing a mandatory rule.

4. Reliance on recalls. The Commission has obtained voluntary

corrective actions with respect to certain dive sticks. The Commission

could continue to rely on corrective actions, both voluntary and

mandatory, in lieu of or in addition to a mandatory rule.

E. Existing Standards

The Commission is not aware of any state, voluntary, foreign,

international, or other standards dealing with the described risk of

injury.

F. Market Information

1. The Product

Dive sticks are one of several types of devices used for underwater

retrieval activities in swimming pools. They are typically made of

rigid plastic, and are or can be weighted so that when dropped into

water they sink and stand upright on the bottom. They are usually

cylindrical in shape, but some have shapes that resemble such things as

fish, sharks, or other sea creatures. Typically, the length is 8 inches

or less and the diameter is one inch or less. Dive sticks and other

dive toys are often numbered with a point value (e.g., 10 through 60)

for counting up totals in games. In some cases, the units with the

higher point values may be shorter than those with lower point values.

Dive sticks are usually sold in sets of 3 to 6 sticks. They are

often sold as part of a package that contains other toys, such as dive

disks, eggs, and rings (e.g., a package may include 3 dive sticks, 3

dive rings, and 3 dive disks). They are also sold with things such as

masks, goggles, or snorkels. At retail they cost from $4 to $7 per set,

or about $1 per individual stick. Even when sold with other products

such as disks, rings, and snorkels, they usually cost less than $10.

Dive sticks and other dive toys are widely available. They are

often sold in the seasonal aisles of grocery and drug stores and can be

purchased at many department and variety stores. Dive toys are also

available through some mail order catalogs and at various pool dealers.

2. Substitutes

A wide range of substitutes is available for dive sticks. The

closest substitute may be dive rings since these are also weighted so

that they stand up on the bottom of the pool. Other substitutes are

dive disks, which are flat, plastic disks that sink to the bottom of

the pool, but lie flat rather than on end. There are also a variety of

dive eggs. In general, these substitutes are manufactured and sold by

the same companies that manufacture and sell dive sticks, often in the

same package. The retail prices of these substitutes are about the same

as the retail prices for the dive sticks.

3. Sales and Number Available for Use

Dive sticks have been sold for over 20 years. However, historical

sales data are not available to determine whether or not there has been

a trend in their use. Based on information that several companies

provided to the CPSC, over 19 million dive sticks have been sold.

Current sales of individual dive sticks appear to be at least 4 million

units annually. Since they are usually sold in packages of 3 to 6

sticks each, this indicates that around 1 million packages are

purchased annually.

In trade publications, dive sticks are classified in the water/

pool/sand toys category. This category includes products such as water

guns, floats, wading pools, and sand buckets. Sales vary with season,

with more sold in the summer than in the winter. Sales of water/pool/

sand toys also tend to vary from year to year depending on how hot the

summer or swimming season is. In 1997, retail sales of water/pool/sand

toys exceeded $450 million, according to a trade publication. Since

dive sticks retail for approximately $1 per stick, dive sticks likely

make up less than one percent of retail sales in this category.

A substantial number of dive sticks are likely available for use

for several years after their purchase. Since several million dive

sticks have been sold annually for the last few years, the total number

available for use could easily exceed 10 million units. Assuming dive

sticks are sold in sets of 3 to 6 each, this indicates that several

million households are likely to own dive sticks.

4. Suppliers

The CPSC's staff has identified at least 15 firms that manufacture

or import dive sticks into the United States. Most of the firms that

import dive sticks obtain their product from China, Hong Kong, or

Taiwan. There may be other manufacturers or importers that the staff

has not identified. Additionally, because of the simplicity of the

product, there are few barriers to entry into the market.

The staff's initial research indicates that most of the firms that

have been identified are small businesses according to the Small

Business Administration guidelines because they have fewer than 100

employees for importers or 500 employees for manufacturers. However, in

all cases, dive sticks probably account for a very small percentage of

any firm's sales. Several of the manufacturers market various types of

pool toys. Others have additional lines such as other types of toys or

pool equipment.

5. Economic Considerations

The CPSC is aware of 7 injuries involving dive sticks since 1990

that resulted when a child hit a dive stick standing upright on the

bottom of a pool. Although the number of injuries is low, some of the

injuries are severe. Some of the injuries have resulted in damage to

the victim's rectal or vaginal areas. At least four of these incidents

required hospitalization, and in one case a temporary colostomy was

performed.

The societal costs of these incidents include primarily medical

costs, lost productivity, and pain and suffering. The total societal

costs of the incidents are likely to be relatively low since the

incidents of concern appear to be relatively rare. However, the

severity of some of the incidents indicates that the average societal

costs of the incidents requiring hospitalization may exceed $100,000,

based on estimates obtained from the Directorate for Economic's Injury

Cost Model for hospitalized cases involving punctures or lacerations to

the victims lower trunk area.

The cost of modifying dive sticks to reduce or remove the risk is

likely to be low. For example, dive sticks could be modified so that

they lie horizontally on or at an angle at the bottom of the pool,

rather than vertically. Such a change may involve some changes in

tooling, molds, and design, but little in terms of production and

material costs. Such a change is unlikely to substantially reduce the

utility of the product to consumers. Another option may be to

manufacture dive sticks from a material that is less rigid and unlikely

to cause serious injury to a person who falls on the product. Moreover,

commercial substitutes for dive sticks already are available. These

substitutes are not dangerous but provide the same play experience. If

hazardous dive sticks were banned altogether, there is little, if any,

reason to doubt that these

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substitutes would enjoy increased purchases.

G. Solicitation of Information and Comments

This ANPR is the first step of a proceeding that could result in a

mandatory rule for dive sticks to address the described risk of injury.

All interested persons are invited to submit to the Commission their

comments on any aspect of the alternatives discussed above. In

particular, CPSC solicits the following additional information:

1. The models and numbers of dive sticks produced for sale in the

U.S. each year from 1990 to the present;

2. The names and addresses of manufacturers and distributors of

dive sticks;

3. The expected useful life of dive sticks.

4. Comparisons of the utility obtained from dive sticks versus

substitute products (e.g., dive rings or disks or dive sticks that lie

horizontally, rather than vertically);

5. The number of persons injured or killed by the hazards

associated with dive sticks;

6. The circumstances under which these injuries and deaths occur,

including the ages of the victims;

7. An explanation of designs that could be adapted to dive sticks

to reduce the described risk of injury;

8. Physical or performance characteristics of the product that

could or should not be used to define which products might be subject

to a rule;

9. The costs to manufacturers involved in either redesigning dive

sticks to remove the risk or removing dive sticks from the market.

10. Other information on the potential costs and benefits of

potential rules;

11. Steps that have been taken by industry or others to reduce the

risk of injury from the product;

12. The likelihood and nature of any significant economic impact of

a rule on small entities;

13. The costs and benefits of mandating a banning, labeling or

instructions requirement.

Also, in accordance with section 3(f) of the FHSA, the Commission

solicits:

1. Written comments with respect to the risk of injury identified

by the Commission, the regulatory alternatives being considered, and

other possible alternatives for addressing the risk.

2. Any existing standard or portion of a standard which could be

issued as a proposed regulation.

3. A statement of intention to modify or develop a voluntary

standard to address the risk of injury discussed in this notice, along

with a description of a plan (including a schedule) to do so.

Comments should be mailed, preferably in five copies, to the Office

of the Secretary, Consumer Product Safety Commission, Washington, DC

20207-0001, or delivered to the Office of the Secretary, Consumer

Product Safety Commission, Room 502, 4330 East-West Highway, Bethesda,

Maryland 20814; telephone (301) 504-0800. Comments also may be filed by

telefacsimile to (301) 504-0127 or by email to [email protected].

Comments should be captioned ``ANPR for Dive Sticks.'' All comments and

submissions should be received no later than September 14, 1999.

Dated: July 12, 1999.

Sadye E. Dunn,

Secretary, Consumer Product Safety Commission.

[FR Doc. 99-18113 Filed 7-15-99; 8:45 am]

BILLING CODE 6355-01-P