[Federal Register Volume 61, Number 246 (Friday, December 20, 1996)]
[Rules and Regulations]
[Pages 67197-67200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32397]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1507
Final Rule: Fireworks Devices; Fuse Burn Time
AGENCY: Consumer Product Safety Commission.
ACTION: Final rule.
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SUMMARY: The Commission amends its regulation under the Federal
Hazardous Substances Act that specifies the allowable fuse burn times
of fireworks devices (except firecrackers). The amendment changes the
allowable fuse burn times from the presently required range of 3 to 6
seconds to the range of 3 to 9 seconds. Increasing the range will
improve safety by allowing manufacturers to more consistently produce
fireworks that do not have dangerously short fuse burn times of below 3
seconds. Further, the increase in the maximum allowable fuse burn time
to 9 seconds will not create any additional risk of injury to
consumers. The amendment originally was requested in a petition from
the American Fireworks Standards Laboratory.
DATES: Adversely affected persons have until January 21, 1997, to file
objections to this rule, stating grounds therefor and requesting a
public hearing on those objections.
If no material objections are received, the Commission will
promptly publish a Federal Register document announcing that fact and
affirming the issuance and the effective date of the amendment. The
amendment will go into effect on the date that the affirmation document
is published, but not earlier than January 22, 1997. If material
objections are received, the Commission will publish a document in the
Federal Register specifying whether the amendment has been stayed by
the filing of proper objections.
ADDRESSES: Objections and requests for hearings must be mailed to the
Office of
[[Page 67198]]
the Secretary, Consumer Product Safety Commission, Washington, D.C.
20207, or delivered to the Office of the Secretary, Room 502, 4330
East-West Highway, Bethesda, Maryland 20814 telephone (301) 504-6800.
FOR FURTHER INFORMATION CONTACT: Robert Poth, Division of Regulatory
Management, Office of Compliance, Consumer Product Safety Commission,
Washington, DC 20207; telephone (301)504-0400 ext. 1375.
SUPPLEMENTARY INFORMATION:
I. Background
In this notice, the Consumer Product Safety Commission (``the
Commission'' or ``CPSC'') amends its regulation under the Federal
Hazardous Substances Act (``FHSA'') that governs the allowable range of
times that fuses for fireworks (other than firecrackers 1) may
burn before the device ignites. 16 CFR 1507.3(a)(2). That regulation
currently requires fireworks devices to have a fuse which will burn at
least 3 seconds but not more than 6 seconds before the device ignites.
16 CFR 1507.3(a)(2).2
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\1\ 16 CFR 1507.1.
\2\ As a matter of enforcement policy, the Commission's staff
has not brought legal actions against fuse burn time violations as
low as 2 seconds and as high as 8 seconds for all fireworks except
reloadable shell devices, bottle rockets, and jumping jacks which
exhibit erratic flight.
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In 1991, the American Pyrotechnics Association (``APA''), a trade
association representing the fireworks industry, submitted a petition
to the Commission to modify the fuse burn time regulation. APA
requested that the upper limit of the allowable fuse burn time be
raised to 9 seconds.
The 1991 petition was denied because, at that time, there were
insufficient human factors data to demonstrate that a person would not
return to a fireworks device within the requested 9-second allowable
fuse burn time. The Commission was concerned that a longer fuse burn
time might increase injuries to consumers who returned to live
fireworks assuming that they were ``duds.''
After the APA's petition was denied, the American Fireworks
Standards Laboratory (``AFSL''), an industry-supported fireworks
standards and certification organization, contracted with the American
Institutes of Research (``AIR'') to conduct human factors research of
fireworks-related behavior. As discussed in the notice of proposed
rulemaking, 61 FR 41043 (August 7, 1996), the study found that
consumers would not likely return to a fireworks device within 9
seconds after lighting the fuse.
In September 1995, AFSL petitioned the CPSC (Petition HP 96-1) to
make the same modification to the FHSA fireworks fuse burn time
regulation as had been previously requested by APA--that the upper
limit of the allowable range of fuse burn times be changed from 6 to 9
seconds.
Manufacturers currently target a 4.5-second average fuse burn time,
which is the midpoint of the currently allowed 3 to 6-second range. By
raising the upper limit of the fuse burn time from 6 to 9 seconds, AFSL
contends that manufacturers could target a more ideal average fuse burn
time of 6 seconds. AFSL claims this would enhance consumer safety by
eliminating incidents where fuses burn less than 3 seconds.
After considering the available information, the Commission
preliminarily concluded that raising the upper limit of the fuse burn
time range from 6 seconds to 9 seconds will reduce injuries caused by
short fuse burn times. Further, the Commission found that raising the
upper limit of the fuse burn time range by 3 seconds will not cause
additional injuries from long fuse burn times.
In addition, the Commission concluded that the risk associated with
short fuse burn times is of greater concern than any risk associated
with long fuse burn times. With a long fuse burn time, consumers have
some cues (absence of smoke and noise) to guide them as to when to
approach a device; they have time to make decisions before they react.
However, consumers have no cues to alert them that a fireworks device
may have a short fuse burn time. The consequences of short fuse burn
times can be immediate. Consumers may have no time to retreat to a safe
distance or to take safety precautions.
Accordingly, the Commission voted to grant Petition HP 96-1, and
published a notice of proposed rulemaking on August 7, 1996. 61 FR
41043. That notice discusses in detail the reasons for the Commission's
action and various issues associated with the proposed amendment. The
Commission received 8 comments on the proposal, all of which favored
the amendment. The comments are discussed below in Section III of this
notice.
II. Statutory Procedure
This proceeding is conducted under the FHSA. 15 U.S.C. 1261-1278.
Fireworks are ``hazardous substances'' within the meaning of section
2(f)(1)(A) of the FHSA. More specifically, they are flammable or
combustible substances, or generate pressure through decomposition,
heat, or other means, and ``may cause substantial personal injury or
substantial illness during or as a proximate result of any customary or
reasonably foreseeable handling or use * * *'' 15 U.S.C. 1261(f)(1)(A).
Under section 2(q)(1)(B) of the FHSA, the Commission may classify
as a ``banned hazardous substance'' any hazardous substance intended
for household use which, notwithstanding the precautionary labeling
that is or may be required by the FHSA, presents such a hazard that
keeping the substance out of interstate commerce is the only adequate
way to protect the public health and safety. Id. at 1261(q)(1)(B). The
current fuse burn time requirement was issued under that section.
The fireworks subject to this regulation, and that have fuse burn
times outside the 3 to 9-second range set forth in this amendment, are
already banned hazardous substances. Because the amendment will not
declare any additional products to be banned hazardous substances, an
advance notice of proposed rulemaking was not required for this
proceeding. See FHSA section 3(f), 15 U.S.C. 1262(f). For the same
reason, the procedures required by sections 3-(g) (i) of the FHSA do
not apply to this proceeding.
The procedures established under section 701(e) of the Food, Drug,
and Cosmetic Act (``FDCA'') also govern this rulemaking. 15 U.S.C.
1261(q)(2). These procedures provide that, once the Commission issues a
final rule, persons who would be adversely affected by the rule have 30
days in which to file objections with the Commission stating the
grounds therefor, and to request a public hearing on those objections.
21 U.S.C. 371(e). Here, this 30-day period expires January 21,1997. If
objections were filed, a hearing to receive evidence concerning the
objections would be held. The presiding officer would then issue an
order, based upon substantial evidence. Id. The Commission's procedural
rules at 16 CFR Part 1502 would apply to such a hearing.
Any objections and requests for a hearing must be filed with the
Commission's Office of the Secretary. They will be accepted for filing
if they meet the following conditions: (1) They are submitted within
the 30-day period specified; (2) each objection is separately numbered;
(3) each objection specifies with particularity the provision(s) of the
regulation to which the objection is directed; (4) each objection on
which a hearing is desired specifically requests a hearing; and (5)
each objection for which a hearing is requested includes a detailed
description of the basis for the objection and the factual information
or analysis
[[Page 67199]]
in support thereof. 16 CFR 1502.6(a). (Failure to submit a description
and analysis for an objection constitutes a waiver of the right to a
hearing on that objection. Id. at 1502.6(a)(5).)
The Commission will publish a notice in the Federal Register
specifying any parts of the regulation that have been stayed by the
filing of proper objections or, if no objections have been filed,
stating that fact. Id. at Sec. 1502.7. As soon as practicable, the
Commission will review any objections and hearing requests that have
been filed to determine whether the regulation should be modified or
revoked, and whether a hearing is justified. Id. at Sec. 1502.8.
III. Comments on the Proposal
The Commission received 10 comments in response to the notice of
proposed rulemaking. All commenters supported raising the upper limit
of the fuse burn time regulation from 6 to 9 seconds. Other issues
raised by the comments are discussed below.
1. Comment: Ban of consumer fireworks. The National Fire Protection
Association (``NFPA'') urged the Commission to adopt NFPA's position,
stated in its Model Fireworks Law, that fireworks should not be used by
consumers but should be strictly limited to trained professionals who
operate in accordance with applicable codes. (Short of this preferred
solution, the NFPA supports the proposed change to the fuse burn time
regulation to help reduce injuries.) Similarly, although Prevent
Blindness America opposes the sale, distribution, and use of Class C
fireworks, that group supports the amendment because it will ``improve
public safety.''
Response: The only way that the Commission could directly
accomplish NFPA's preferred goal of keeping fireworks out of the hands
of consumers would be to ban all consumer fireworks. See 15 U.S.C.
1263. That alternative is beyond the scope of this proceeding.
2. Comment: Continuation of the current enforcement policy allowing
2 to 3-second fuse burn times. The AFSL pointed out that the
Commission's current enforcement policy allows a 2 to 3-second lower
limit of fuse burn time for some fireworks. The Commission has
indicated that, at some time after the regulation is amended, the 3-
second minimum for all subject fireworks would be strictly enforced.
However, the Commission also indicated that the current 2 to 3-second
policy would remain in effect for a time after the effective date of
the regulation so as to minimize any adverse economic effect on
manufacturers. The AFSL and some other industry members requested that
this enforcement policy be extended for 1 year after the effective date
of the regulation.
Response: The Commission agrees that strict enforcement of the 3-
second lower limit of fuse burn time for all fireworks, as soon as the
amended rule goes into effect, would pose some adverse economic impact
on the industry. Fireworks produced before then that have 2 to 3-second
fuse burn times, although complying with the Commission's enforcement
policy that was in effect when these fireworks were made, would be
banned. This would cause an unwarranted economic burden on the
industry.
CPSC staff discussion with an industry commenter indicated that the
July 4th season represents peak demand in the U.S. for fireworks and
that domestic and imported fireworks to meet that demand should be in
U.S. distribution channels by mid-May at the latest. It seems
reasonable to assume that all noncomplying current inventory is
intended for the 1997 July 4th season. Therefore June 30, 1997, is an
appropriate cut-off date for the enforcement policy allowing 2 to 3-
second fuse burn times for most fireworks. Accordingly, the Commission
will not bring enforcement actions against fireworks on the basis of
fuse burn times between 2 and 3 seconds for fireworks that are first
distributed in commerce in the United States--by being imported into
the U.S. or shipped from a U.S. manufacturer--by June 30, 1997.
The June 30, 1997, date for ending the enforcement policy allowing
the introduction into commerce of fireworks having fuse burn times of
between 2 and 3 seconds assumes that no objections will be received to
amending the fuse burn time to 3 to 9 seconds. However, as explained in
Section II of this notice, if objections are received, the effective
date of the amendment could be delayed considerably. To account for
this possibility, the Commission is extending this enforcement policy
until June 30, 1997, or until 6 months after the effective date of the
amendment allowing 3 to 9-second fuse burn times, whichever is later.
3. Comment: Interim policy allowing fuse burn times between 6 and 9
seconds. The notice of proposed rulemaking indicated that the earliest
possible effective date for the final rule would be 31 days after the
final rule was published in the Federal Register. The AFSL stated that,
if there are no objections to amending the regulation, the pending 3 to
9-second amendment should be implemented as an enforcement policy at
the close of the comment period. The AFSL commented that this would
allow the safety benefit to be immediately realized.
The AFSL also commented that immediately implementing the amended
upper fuse burn time limit would allow a significant amount of the
devices for the 1997 fireworks season to comply with the new
requirement. If the amendment were not allowed to be implemented until
after the rule became effective, AFSL stated, ``the positive impact
that the rule is expected to have on consumer safety is virtually lost
until the 1998 fireworks season.''
Response: The Commission believes it is in the public interest to
allow the manufacture of fireworks with a 9-second upper limit of fuse
burn time as soon as possible. Such a change should reduce injuries
caused by short fuse burn times. Accordingly, the Commission's staff
sent a letter, dated November 7, 1996, to the petitioner and other
major fireworks trade associations announcing an interim policy
allowing manufacturers to begin immediately producing fireworks to the
9-second upper limit of fuse burn time.
4. Comment: Consumer Survey. As part of a class assignment,
students from Florida International University conducted an informal
survey of 30 people, from 9 through 54 years of age, to determine
whether they thought banning fireworks was the best solution to the
problems caused by their use. The respondents preferred increasing the
fuse burn time as the best course of action to be pursued. The students
also suggested that, in the future, consideration be given to having
manufacturers enclose safety information with their products.
Response: The action taken by the Commission is consistent with
this comment, insofar as it relates to the scope of this proceeding.
IV. Effective Date
Increasing the allowable fuse burn times from the range of 3 to 6
seconds to a range of 3 to 9 seconds will not have any adverse effects
on manufacturers, since it simply provides a wider range of allowable
times. Thus, the Commission is making the amendment effective as soon
as practicable. Under 21 U.S.C. 371(e), 30 days is allowed after this
type of final rule is issued to receive any objections to the rule.
That section also provides that the final rule may not become effective
before the 30-day period for objections expires. As noted above, if no
objections are filed, the Commission must publish a Federal Register
notice stating that fact. Therefore, the
[[Page 67200]]
amendment will become effective on the day the notice affirming the
final rule is published in the Federal Register. This approach will
allow interested persons to know with greater certainty that the
amendment had in fact taken effect, without having to determine whether
another party had filed objections.
As noted above, the Commission's staff currently has a policy of
not enforcing against fuse burn time violations as low as 2 seconds for
all subject fireworks except reloadable shell devices, bottle rockets,
and jumping jacks that exhibit erratic flight. The Commission intends
to continue the current policy with respect to fuse burn times of 2 to
3 seconds until at least June 30, 1997, in order to minimize any
adverse economic effects on the industry. Thus, subject to further
notice, no enforcement actions will be brought on the basis of fuse
burn times between 2 and 3 seconds against subject fireworks that are
imported or shipped from a U.S. manufacturer by June 30, 1997, or 6
months after the effective date of the amendment, whichever is longer.
Also, after notifying the Commission, the CPSC staff on November 7,
1996, established an interim policy of allowing fuse burn times between
6 and 9 seconds. Therefore, until the amendment to allow fuse burn
times of between 3 and 9 seconds becomes effective, the staff will not
bring enforcement actions based on fuse burn time violations in the 6
to 9-second range.
V. Final Regulatory Flexibility Analysis
When an agency undertakes a rulemaking proceeding, the Regulatory
Flexibility Act, 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. An
agency is not required to prepare a regulatory flexibility analysis if
the head of an agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
5 U.S.C. 605.
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.
Based on information from the U.S. Department of Commerce and
industry sources, the estimated value of imported shipments of consumer
fireworks is about $70 to $100 million annually. Practically all of the
imports are from China.
Most U.S. firms that import, distribute, or manufacture fireworks
for consumer use are small, and the rule is not expected to result in
any adverse impact. This is because the change to a longer fuse, which
should increase production costs by only about one percent, will
generate savings as a result of fewer rejections of fireworks due to
fuse burn time violations. Based on information from a trade
association and CPSC's Office of Compliance, an estimated 40 to 50
percent of the rejections of fireworks as a result of private and CPSC
testing are due to fuse burn time violations. The savings from the
reduced violations, according to a representative of an industry trade
association, could reach approximately $20 million annually. This may
result in lower prices to the consumer.
Industry sources indicate that any necessary adjustments to the
manufacturing process will take approximately 1 week to accomplish once
notification is received. Since fireworks which comply with the current
3 to 6-second fuse burn time requirement will necessarily comply with
the new 3 to 9-second fuse burn time requirement and because the
existing enforcement policy will be continued for a sufficient period
of time--there will be no economic impact resulting from the choice of
effective date.
VI. Environmental Impact
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 has assessed
the possible environmental effects associated with the amendment to the
fuse burn times of fireworks.
The Commission's regulations at 16 CFR 1021.5(c)(1) and (2) state
that safety standards for consumer products normally have little or no
potential for affecting the human environment. Since the acceptable
fuse burn times will increase from the range of 3 to 6 seconds to the
range of 3 to 9 seconds--and because the existing enforcement policy
will be continued for a sufficient period of time--the change will not
cause any increase in noncomplying fireworks, which would require
disposal. Therefore, no significant environmental effects are expected
from the amended rule. Accordingly, neither an environmental assessment
nor an environmental impact statement is required.
IX. Conclusion
List of Subjects in 16 CFR Part 1507
Consumer protection, Explosives, Fireworks.
For the reasons set out in the preamble, title 16, chapter II, part
1507, of the Code of Federal Regulations is amended as follows.
PART 1507--FIREWORKS DEVICES
1. The authority citation for part 1507 is revised to read as
follows:
Authority: 15 U.S.C. 1261-1262, 2079(d); 21 U.S.C. 371(e).
Sec. 1507.3 [Amended]
2. In section 1507.3(a)(2), remove the words ``6 seconds'' and add,
in their place, the words ``9 seconds''.
Dated: December 16, 1996.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 96-32397 Filed 12-19-96; 8:45 am]
BILLING CODE 6355-01--P
