[Federal Register: June 5, 1995 (Volume 60, Number 107)]
[Proposed Rules]
[Page 29518-29520]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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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