[Federal Register: January 30, 2003 (Volume 68, Number 20)]
[Rules and Regulations]
[Page 4697-4699]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30ja03-5]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1500
Exemptions From Classification as Banned Hazardous Substances;
Exemption for Certain Model Rocket Propellant Devices for Use With
Rocket-Powered Model Cars
AGENCY: Consumer Product Safety Commission.
ACTION: Final rule.
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SUMMARY: The Commission is issuing a rule to exempt from the Federal
Hazardous Substances Act (``FHSA'') certain model rocket propellant
devices for vehicles that travel on the ground. The Commission's
current regulations exempt motors used for flyable model rockets. The
rule exempts certain propellant devices for rocket-powered model cars
if they meet requirements similar to those required for flyable model
rockets and additional requirements to avoid possible injuries if the
cars are operated off of their tether.
DATES: The rule becomes effective on January 30, 2003.
FOR FURTHER INFORMATION CONTACT: James G. Joholske, Office of
Compliance, Consumer Product Safety Commission, Washington, DC 20207;
telephone (301) 504-0608 ext. 1419.
SUPPLEMENTARY INFORMATION:
A. Background
Section 2(q)(1)(A) of the FHSA bans toys that are or contain
hazardous substances that are accessible to a child. 15 U.S.C.
1261(q)(1)(A). However, the FHSA authorizes the Commission, by
regulation, to grant exemptions from classifications as banned
hazardous substances for:
articles, such as chemistry sets, which by reason of their
functional purpose require the inclusion of the hazardous substance
involved, or necessarily present an electrical, mechanical, or
thermal hazard, and which bear labeling giving adequate directions
and warnings for safe use and are intended for use by children who
have attained sufficient maturity, and may reasonably be expected to
read and heed such directions and warnings.
15 U.S.C. 1261(q)(1)(A). Thus, the Commission may issue an exemption if
it finds that the product requires inclusion of a hazardous substance
in order for it to function, has sufficient directions and warnings,
and is intended for children who are old enough to read and follow the
directions and warnings. Id. The Food and Drug Administration, which
administered the FHSA before the Commission was established, issued a
rule under this authority that exempted from the definition of banned
hazardous substances model rocket propellant devices (motors) designed
for use in light-weight, recoverable, and reflyable model rockets, if
they meet certain requirements. 16 CFR 1500.85(a)(8).
B. The Petition
The Commission received a petition from Centuri Corporation
(``Centuri'') requesting that the Commission issue a rule exempting
certain model rocket propellant devices to be used for model cars that
travel on the ground along a tethered line and are propelled in a
manner similar to flyable rockets. The petitioner requested an
exemption that would allow the sale of both of its two prototype
rocket-powered model cars. The smaller car, named ``Blurzz,'' uses an
``A'' motor, and is shaped like a ``rail,'' a type of custom-made
vehicle used in competitive drag racing. The larger prototype, named
``Screamin' Eagle,'' uses a ``D'' motor, and is shaped like a
``Bonneville Speed Record'' custom vehicle. The Commission decided to
grant the petition in part and propose an exemption for model rocket
propellant devices to be used for rocket-powered model cars like the
smaller ``Blurzz'' car only.\1\
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\1\ The Commission voted 2-1 to grant the petition with regard
to the smaller vehicles and deny it regarding the larger ones.
Commissioners Thomas Moore and Mary Sheila Gall voted to take this
action. Then-Chairman Ann Brown voted to deny the entire petition.
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C. The Proposed Exemption
On January 30, 2002, the Commission published a notice of proposed
rulemaking (``NPR'') proposing to exempt model rocket propellant
devices for use with smaller rocket-powered model cars like the
``Blurzz.'' 67 FR 4373. As explained in the NPR, the Commission
concluded that due to the weight, speed and the height it can reach,
the larger ``Screamin' Eagle'' posed a significant risk of injury to
any person downrange from it when it is used in the absence of the
tether. The Commission, therefore, denied the petition insofar as it
requested an exemption from the FHSA for model rocket propellant
devices for cars like the ``Screamin' Eagle.'' However, the Commission
concluded that when the smaller ``Blurzz'' car was ignited
[[Page 4698]]
without the tether, it ordinarily simply flipped onto its back and
skittered around on the ground or traveled downrange only a very
limited distance, and rose only a few inches in the air, before
flipping onto its back. Thus, the Commission concluded that there is a
reasonable probability that model rocket propellant devices for rocket-
powered model cars like the ``Blurzz'' present no unreasonable risk of
injury even when operated in reasonably foreseeable misuse without the
tether. The Commission also preliminarily found that children
interested in model rockets and rocket-powered model cars such as the
``Blurzz'' are of sufficient maturity that they may reasonably be
expected to read and heed the directions for use and warnings that
accompany model cars like the ``Blurzz.'' The Commission also
preliminarily found that those directions and warnings are adequate to
guide users in the safe use of the product.
D. Comments on the NPR
The Commission received three comments on the NPR from Centuri,
Intertek Testing Services (``Intertek''), and the National Association
of Rocketry (``NAR''). Centuri commented on some of the technical
statements in the staff's memos that were part of the briefing package
concerning Centuri's petition. The comment from Intertek was actually
test results submitted by Centuri. Intertek suggested enlarging the
safety alert symbol that appears in directions for the model car.
Commission staff agrees that the entire warning label should be larger.
NAR agreed with the Commission that the exemption should be limited to
smaller ``A'' motors.
E. The Final Rule
When reviewing data for the petition, the Commission's Directorate
for Epidemiology found two deaths over a 20-year period involving model
airplanes (both involved adult males, 40 and 44 years of age). Centuri
provided additional information about these. In one incident, the plane
weighed about 5 pounds (compared to 2.7 oz. for a size ``A'' rocket-
powered model car), and was traveling at an estimated 200 mph (compared
to the top speed of 28 mph for the size ``A'' car). Centuri
characterized the airplane in the other incident as ``quite large and
heavy.'' The staff reviewed data available after the petition briefing
package (for the period May 26, 2001 to April 15, 2002) and found no
deaths that could be considered comparable to deaths that might involve
rocket-powered model cars.
The Commission's Human Factors staff reviewed revised instructions
submitted by Centuri and concluded that the revisions were an
improvement over previous instructions and would make them easier for
users age 10 and up to follow.
The Commission's Engineering staff reviewed results of testing from
Intertek. Intertek was primarily concerned with the dangers of
launching the engine alone without the vehicle. Because such motors are
currently available with other exempted products, the staff does not
believe that exempting rocket-powered model cars creates or increases
the hazard of igniting motors outside the vehicles. Intertek was also
concerned about launching cars from a ramp or vertical support.
However, the Engineering staff believes such operation would be similar
to launching a model rocket, and injury data do not suggest a problem
with model rockets in those types of launches.
The Commission's staff was concerned about possible injuries if
rocket powered cars are operated off the tether. As discussed above,
when the ``Blurzz'' was used without the tether it traveled only a
limited distance a few inches off the ground and then flipped on its
back. Such performance is not likely to injure operators or bystanders.
However, Compliance staff was concerned that in the future a company
may develop a rocket-powered model car that when operated off the
tether could obtain sufficient height, distance and force to injure
operators or bystanders. Thus, the final rule contains a limitation
that vehicles must be designed so that they either cannot operate off
of a track or line ( i.e., tether), or if operated off the tether the
vehicle will be unstable and will not travel in a guided fashion, so
that the car will not strike operators or bystanders. The Commission
reminds manufacturers that under section 15 of the Consumer Product
Safety Act they have an obligation to report to the Commission if they
have information which reasonably supports the conclusion that their
product creates an unreasonable risk of serious injury or death or
contains a defect which could create a substantial product hazard. 15
U.S.C. 2064(b)(2) & (3). The Commission has the authority to pursue
corrective action regarding any toy or other children's article that
creates a substantial risk of injury to children. 15 U.S.C. 1274(c)(1).
A small change was made to the final rule in order to correct a
cross reference that conflicted with the characteristics of an A motor
described in section 1500.85(a)(14)(i)(B) of the rule and to include
appropriate provisions of the cross-reference in the rule itself.
F. Effective Date
This rule exempts certain model rocket propellant devices for
rocket-powered model cars that would otherwise be banned under the
FHSA. Because the rule grants an exemption, it is not subject to the
requirement under the Administrative Procedure Act (``APA'') that a
rule must be published 30 days before it takes effect. 5 U.S.C
553(d)(1). The rule lifts an existing restriction and allows a product
not previously permitted. Thus, the Commission believes it is
appropriate for the rule to become effective upon publication in the
Federal Register.
G. Impact on Small Business
The NPR discussed the Commission's assessment of the impact that a
rule to exempt propellant devices for use with small rocket-powered
model cars like the ``Blurzz'' might have on small businesses. Because
the exemption would relieve manufacturers from existing restrictions,
the Commission concluded that the proposed exemption would not have a
significant impact on a substantial number of small businesses or other
small entities. No comments or additional information alter that
conclusion.
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 assessed the
possible environmental effects associated with the proposed exemption.
As discussed in the NPR, the Commission concluded that the rule would
have no adverse effect on the environment, and therefore, neither an
environmental assessment nor an environmental impact statement is
required.
I. Executive Orders
According to Executive Order 12988 (February 5, 1996), agencies
must state in clear language the preemptive effect, if any, of new
regulations.
The FHSA provides that, generally, if the Commission issues a rule
under section 2(q) of the FHSA to protect against a risk of illness or
injury associated with a hazardous substance, ``no State or political
subdivision of a State may establish or continue in effect a
requirement applicable to such substance and designed to protect
against the same risk of illness or injury unless such requirement is
identical to
[[Page 4699]]
the requirement established under such regulations.'' 15 U.S.C.
1261n(b)(1)(B). (The FHSA also provides for the state or political
subdivision of a state to apply for an exemption from preemption if
certain requirements are met.) Thus, the rule exempting model rocket
propellant devices for use with certain surface vehicles will preempt
non-identical requirements for such propellant devices.
The Commission has also evaluated the rule in light of the
principles stated in Executive Order 13132 concerning federalism, even
though that Order does not apply to independent regulatory agencies
such as CPSC. The Commission does not expect that the rule will have
any substantial direct effects on the States, the relationship between
the national government and the States, or the distribution of power
and responsibilities among various levels of government.
List of Subjects in 16 CFR Part 1500
Consumer protection, Hazardous materials, Hazardous substances,
Imports, Infants and children, Labeling, Law enforcement, Toys.
Conclusion
For the reasons stated above, the Commission concludes that, with
the requirements stated in the exemption, model rocket propellant
devices to propel small rocket-powered cars like the ``Blurzz'' require
inclusion of a hazardous substance in order to function, have
sufficient directions and warnings for safe use, and are intended for
children who are mature enough that they may reasonably be expected to
read and heed the directions and warnings. Therefore, the Commission
amends title 16 of the Code of Federal Regulations as follows:
PART 1500--HAZARDOUS SUBSTANCES AND ARTICLES: ADMINISTRATION AND
ENFORCEMENT REGULATIONS
1. The authority for part 1500 continues to read as follows:
Authority: 15 U.S.C. 1261-1278.
2. Section 1500.85 is amended by adding a new paragraph (a)(14) to
read as follows:
Sec. 1500.85 Exemptions from classification as banned hazardous
substances.
(a) * * *
(14) Model rocket propellant devices (model rocket motors) designed
to propel rocket-powered model cars, provided--
(i) Such devices:
(A) Are designed to be ignited electrically and are intended to be
operated from a minimum distance of 15 feet (4.6 m) away;
(B) Contain no more than 4 g. of propellant material and produce no
more than 2.5 Newton-seconds of total impulse with a thrust duration
not less than 0.050 seconds;
(C) Are constructed such that all the chemical ingredients are pre-
loaded into a cylindrical paper or similarly constructed non-metallic
tube that will not fragment into sharp, hard pieces;
(D) Are designed so that they will not burst under normal
conditions of use, are incapable of spontaneous ignition, and do not
contain any type of explosive or pyrotechnic warhead other than a small
recovery system activation charge;
(E) Bear labeling, including labeling that the devices are intended
for use by persons age 12 and older, and include instructions providing
adequate warnings and instructions for safe use; and
(F) Comply with the requirements of 16 CFR 1500.83(a)(36)(ii and
iii); and
(ii) The surface vehicles intended for use with such devices:
(A) Are lightweight, weighing no more than 3.0 oz. (85 grams), and
constructed mainly of materials such as balsa wood or plastics that
will not fragment into sharp, hard pieces;
(B) Are designed to utilize a braking system such as a parachute or
shock absorbing stopping mechanism;
(C) Are designed so that they cannot accept propellant devices
measuring larger than 0.5'' (13 mm) in diameter and 1.75'' (44 mm) in
length;
(D) Are designed so that the engine mount is permanently attached
by the manufacturer to a track or track line that controls the
vehicle's direction for the duration of its movement;
(E) Are not designed to carry any type of explosive or pyrotechnic
material other than the model rocket motor used for primary propulsion;
(F) Bear labeling and include instructions providing adequate
warnings and instructions for safe use; and
(G) Are designed to operate on a track or line that controls the
vehicles' direction for the duration of their movement and either
cannot operate off the track or line or, if operated off the track or
line, are unstable and fail to operate in a guided fashion so that they
will not strike the operator or bystanders.
* * * * *
3. Section 1500.83(a)(36)(i) is revised to read as follows:
Sec. 1500.83 Exemptions for small packages, minor hazards, and
special circumstances.
(a) * * *
(36) * * *
(i) The devices are designed and constructed in accordance with the
specifications in Sec. 1500.85(a)(8), (9) or (14);
* * * * *
Dated: January 27, 2003.
Todd Stevenson,
Secretary, Consumer Product Safety Commission.
Appendix to Preamble--List of Relevant Documents
1. Briefing memorandum from Terrance R. Karels, Directorate for
Economic Analysis, to the Commission, ``Exemption from
Classification as Banned Hazardous Substances Rocket-powered Model
Cars, January 13, 2003.
2. Memorandum from Joyce McDonald, Hazard Analysis Division, to
Terrance R. Karels, ``Model Rocket Car Petition,'' October 18, 2002.
3. Memorandum from Sharon R. White, Directorate for Engineering
Sciences, Division of Human Factors, to Terrance R. Karels,
``Responses to Comments on Briefing Package concerning Centuri
Corporation's Petition for Exemption of Model Rocket Propellant
Devices for Surface Vehicles, HP 01-02,'' September 6, 2002.
4. Memorandum from Troy W. Whitfield, Directorate for Engineering
Sciences, to Terrance R. Karels, ``Rocket Powered Model Cars--Public
Comment,'' September 12, 2002.
5. Memorandum from Terrance R. Karels, Directorate for Economic
Analysis, to Files, ``Rocket powered cars,'' May 8, 2002.
6. Memorandum from Terrance R. Karels, Directorate for Economic
Analysis, to Patricia M. Pollitzer, Office of General Counsel,
``Rocket-powered Model Cars--Economic Considerations,'' December 20,
2002.
7. Memorandum from Jason R. Goldsmith, Ph.D., Division of Health
Sciences, to Terrance R. Karels, ``Rocket-Powered Model Cars--
Response to Comments,'' October 17, 2002.
[FR Doc. 03-2205 Filed 1-29-03; 8:45 am]
BILLING CODE 6355-01-P