[Federal Register Volume 59, Number 38 (Friday, February 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4359]
[[Page Unknown]]
[Federal Register: February 25, 1994]
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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
