[Federal Register Volume 60, Number 128 (Wednesday, July 5, 1995)]
[Proposed Rules]
[Pages 34922-34934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16313]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Parts 1500 and 1507
Multiple Tube Mine and Shell Fireworks Devices
AGENCY: Consumer Product Safety Commission.
ACTION: Proposed rule.
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SUMMARY: The Commission is proposing to amend its fireworks regulations
to require that multiple tube mine and shell devices that have any tube
with an inner diameter of 1.5 inches (3.8 cm) or greater pass a
performance test for stability. Specifically, these devices would be
required to have a minimum tip angle above 60 degrees. Requirements
currently enforced by the Commission do not adequately address the risk
of injury posed by the potential tipover of these fireworks devices,
and labeling would not adequately reduce the risk. Although a voluntary
standard exists, the Commission does not believe that it would
adequately reduce the risk of tipover or that compliance would be
adequate. The Commission is issuing this proposed rule under the
authority of the Federal Hazardous Substances Act. The Commission is
not proposing any action on multiple tube devices having an inner
diameter of less than 1.5 inches.
DATES: Written comments in response to this notice must be received by
the Commission no later than September 18, 1995.
ADDRESSES: Comments should be mailed, preferably in five (5) copies, to
the Office of the Secretary, Consumer Product Safety Commission,
Washington, DC 20207, or delivered to the Office of the Secretary,
Consumer Product Safety Commission, Room 502, 4330 East-West Highway,
Bethesda, Maryland 20814; telephone (301) 504-6800.
FOR FURTHER INFORMATION CONTACT: Michael A. Babich, Ph.D, Project
Manager, Directorate for Epidemiology and Health Sciences, Consumer
Product Safety Commission, Washington, DC 20207-001; telephone (301)
504-0994, ext. 1383.
SUPPLEMENTARY INFORMATION:
A. Background
Multiple tube mine and shell fireworks devices (also called
``display racks'' and referred to in this notice as ``multiple tube
devices'') are classified by the Department of Transportation (``DOT'')
as 1.4G explosive devices (formerly Class C common fireworks devices)
which are suitable for use by consumers. Multiple tube devices are non-
reloadable devices that fire multiple aerial shells and/or comets into
the air while producing visual or audible effects. These devices
consist of several vertical tubes with a common fuse, either with or
without a horizontal base.
Because it is designed to fire sequentially, there is a danger that
after the first shot or few shots, the device may become unstable and
tip over. The other shots may then fire horizontally or at an angle and
hit the operator or spectators. The Commission is aware of two deaths
to spectators involving multiple tube devices that occurred in this
manner. Both of these incidents involved devices with tubes larger than
1.5 inches in diameter.
The Commission regulates fireworks devices pursuant to the
provisions of the Federal Hazardous Substances Act (``FHSA''). 15
U.S.C. 1261 et seq. Under current regulations, the Commission has
declared certain specified fireworks devices to be ``banned hazardous
substances.'' 16 CFR 1500.17(a)(3), (8) and (9). Additional regulations
prescribe the requirements that fireworks devices not specifically
listed as banned must meet to avoid being classified as banned
hazardous substances. 16 CFR part 1507. These include a requirement
that fuses burn for 3 to 6 seconds, resist side ignition, and remain
securely attached to the device; a requirement that the minimum
horizontal dimension or diameter of the base of a device must be at
least one third of the height of the device; and a requirement to
prevent blowout of the tube. Finally, additional Commission regulations
prescribe specific warnings required on various legal fireworks
devices, 16 CFR 1500.14(b)(7), and designate the size and location of
these warnings. 16 CFR 1500.121.
On July 1, 1994, the Commission issued an advance notice of
proposed rulemaking (``ANPR'') discussing the hazard presented by
multiple tube devices of all sizes, but noted the more severe incidents
with large devices. 59 FR 33928. The ANPR used 1 inch (2.54 cm) as the
cutoff between small and large devices. The ANPR explained that the
Commission was considering several regulatory alternatives: (1) Ban all
multiple tube devices; (2) ban multiple tube devices with an inside
tube diameter of greater than 1 inch; (3) require additional labeling
on all multiple tube devices; (4) establish performance or design
criteria to modify these devices; (5) pursue individual product
recalls; and (6) take no mandatory action, but encourage development of
a voluntary standard.
The Commission is proposing a performance standard for multiple
tube devices with any inner tube diameter of 1.5 inches or more. As
explained below, the Commission believes that 1.5 inches is a more
appropriate measure for distinguishing between large and small devices.
The Commission is not proposing any further regulatory action on small
devices.
B. Statutory Authority
This proceeding is conducted under provisions of the FHSA. 15
U.S.C. 1261 et seq. Fireworks are ``hazardous substances'' within the
meaning of section 2(f)(1)(A) of the FHSA because 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
required by the FHSA, presents such a hazard that keeping the substance
out of interstate commerce is the only adequate means to protect the
public health and safety. Id. 1261(q)(1)(B). A proceeding to classify a
substance as a banned hazardous substance under section 2(q)(1) of the
FHSA is governed by the requirements set forth in section 3(f) of the
FHSA, and by section 701(e) of the Federal Food, Drug, and Cosmetic Act
(``FDCA'') (21 U.S.C. 371(e)). See 15 U.S.C. 1261(q)(2).
The July 1, 1994, ANPR was the first step necessary to declare the
specified multiple tube devices banned hazardous substances under
section 2(q)(1). See 15 U.S.C. 1262(f). This proposed regulation
continues the regulatory process in accordance with the requirements of
15 U.S.C. 1262(h). Under the proposed rule, multiple tube devices with
tubes measuring 1.5 inches or larger in diameter would be considered
banned hazardous substances unless they comply with the tip angle test
explained below.
[[Page 34923]]
If the Commission determines to issue a final rule, it must publish
the text of the final rule and a final regulatory analysis that
includes: (1) A description of the potential costs and benefits of the
rule; (2) a description of alternatives considered by the Commission
(including a description of their potential costs and benefits and an
explanation of why they were not chosen); and (3) a summary of
significant issues raised by comments on the preliminary regulatory
analysis published with the proposed rule. Id. 1262(i)(1). The
Commission also must make findings that: (1) Any relevant voluntary
standard is unlikely to adequately reduce the risk of injury or
substantial compliance with the voluntary standard is unlikely; (2) the
expected benefits of the regulation bear a reasonable relationship to
expected costs; and (3) the regulation imposes the least burdensome
requirement that would adequately reduce the risk of injury. Id.
1262(i)(2).
If the Commission decides to finalize the rule, procedures
established under section 701(e) of the FDCA would govern. 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 a
period of thirty (30) days in which to file objections stating
reasonable grounds therefor, and to request a public hearing on those
objections. 21 U.S.C. 371(e). Should valid objections be filed, a
hearing to receive evidence concerning the objections would be held and
the presiding officer would issue an order after the hearing, based
upon substantial evidence. 21 U.S.C. 371(e); 16 CFR part 1502.
C. The Product: Large Devices
The ANPR broadly addressed multiple tube devices of all sizes. As
discussed in section E below, the Commission is narrowing the focus of
this proceeding to devices that have any tube equal to or greater than
1.5 inches in inner diameter (hereinafter referred to as ``large
devices''). The Commission believes that devices 1.5 inches or more are
the most appropriate devices for the Commission's focus. The large
devices involved in fatalities and tested by the Commission staff have
had tube diameters that measured at least 1.5 inches. The staff
believes that devices with tubes between 1.0 and less than 1.5 inches
are rare. Moreover, the fireworks industry defines large devices as
those with tube diameters greater than or equal to 1.5 inches. Thus,
economic information from the industry is organized in this manner.
Because there are few, if any, devices with inner tube diameters
between 1.0 and 1.5 inches, the Commission believes that this change
will have little or no impact.
Large multiple tube devices are relatively new, first introduced by
domestic manufacturers around 1986. Generally, they consist of three or
more tubes grouped together, sometimes on a wooden base, fused in a
series to fire sequentially. Where bases are used, they come in a
variety of different dimensions. The devices fire aerial shells or
comets from the tubes, producing visual and audible effects. These
devices are among the largest fireworks available to consumers. They
are sometimes referred to as display racks.(13)1
\1\Numbers in parentheses refer to documents listed at the end
of this notice.
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The tubes may be individually labeled or have a single label
surrounding them. In any case, Commission regulations require that
multiple tube devices display the following conspicuous label:
Warning (or Caution) Emits Showers of Sparks (or Shoots Flaming
Balls, if More Descriptive)
Use only under [close] adult supervision.
For outdoor use only.
Place on a hard smooth surface (or place upright on level
ground, if more descriptive).
Do not hold in hand.
Light fuse and get away.
16 CFR 1500.14(b)(7)(ix).
The National Fireworks Association (``NFA'') reports retail sales
of large multiple tube devices between $24 and $36 million annually,
with an estimated 400,000 to 700,000 units sold per year. Prices range
from $30 to $130 per unit. Most devices range in price from $50 to $60.
The NFA reports that domestic devices account for about 75 percent of
the market (by dollar volume) and somewhat less by unit sales. Imported
devices are manufactured primarily in China, and go through several
wholesalers before reaching the retail vendor.(13)
Because the devices fire sequentially, the force from one of the
earlier shots can tip the device over, causing it to fall into a
horizontal position. A subsequent shot can discharge as the device is
falling or when it is in a horizontal position. When this occurs there
is a risk that one of the projectiles may strike the operator of the
device or spectators and cause serious injury or even death.
D. Risk of Injury
As reported in the ANPR, the Commission is aware of two deaths
involving large multiple tube devices. In both incidents, the device
tipped over while functioning. The projectile fired horizontally from
the device and struck the victim. In each case, the victim was a
spectator.
The first fatality occurred in July of 1991. A 3-year-old boy was
standing between his father's legs approximately 40 feet from an area
where fireworks were being set off at a family reunion. The device had
been placed on concrete blocks. The device tipped over after the third
shot, and the fourth shell fired horizontally in the direction of the
boy, striking him in the left ear. He died the next morning.(2, Tab A)
The second fatality occurred in July of 1992. The victim, a 65-
year-old grandmother, was sitting at the end of a picnic table watching
a family fireworks display approximately 40 feet away. Her son placed a
large multiple tube device on a piece of wafer board that extended
about one foot over the end of a boat dock. He placed a 2 x 4 block of
wood under the end of the board so that the device would shoot out over
the lake. After lighting the device, he walked toward the shore and
noticed that the device had tipped over after the third shot. The
fourth shell discharged horizontally and struck his mother in the
temple and eye. She died the next morning.(2, Tab A)
E. Small Multiple Tube Devices
The Commission is not proposing any action concerning multiple tube
devices with tube diameters less than 1.5 inches. As explained below,
it does not appear that the tip angle proposed for large devices would
be appropriate for small devices. Furthermore, the Commission's data
indicate that no deaths and relatively few injuries have occurred with
the small devices.(5) The Directorate for Economics estimates that with
the large number of small devices on the market (many of which might
have to be modified to meet a standard) and the relatively few number
of reported incidents, the costs of regulatory action might
substantially exceed anticipated benefits.(13)
F. Commission Tests To Develop a Standard
1. Testing Prior to the ANPR
As recounted in the ANPR, after the Commission learned about the
first fatality, the staff informed the fireworks industry, including
the American Pyrotechnics Association (``APA'') and the American
Fireworks Standards Laboratory (``AFSL''). Several domestic
manufacturers of large multiple tube devices began developing a test
for the potential of these devices to tip over while functioning. The
test used a 2-
[[Page 34924]]
inch (5 cm) thick block of medium density (2 pounds per cubic foot or
0.032g/cm\3\) polyurethane upholstery foam to simulate grassy or other
uneven surfaces.
AFSL then began work to revise its standard for these devices to
incorporate such a dynamic stability test. AFSL issued an interim
revised voluntary standard in January 1993 (which is the current
version of the standard). The Commission also collected samples of
large multiple tube devices and tested them for tipover using the
industry's dynamic stability test.(1 and 14)
2. Dynamic Stability Testing
After issuing the ANPR, the Commission staff devised a plan to
develop a dynamic stability test that could provide a reliable
performance standard for multiple tube devices. The staff's objective
was to develop a test that could reliably distinguish between large
multiple tube devices that are dangerously unstable and those that do
not present an unreasonable tipover risk. Like the industry, the staff
attempted to identify a test surface that would simulate grass (the
surface believed to be commonly used for fireworks displays), and that
would produce consistent results in repeated tests.
In order to accomplish this goal, the staff had to identify a
surface on which the devices would consistently tipover or remain
upright at the same rate as on grass. If the tipover rate was
significantly greater on the test surface than on grass, the standard
might be too stringent. If the tipover rate was significantly lower on
the test surface than on grass, the standard might not adequately
protect consumers. The staff's testing focused principally on large
devices since these present the most serious hazard.
The staff tested large multiple tube devices in two phases. In
phase I, three devices were tested on grass and on three types of foam.
The type of foam that yielded tipover results closest to those on grass
was to be used in phase II, where six additional devices were tested
with grass and one type of foam.2 All nine large multiple tube
devices had inner tube diameters of at least 1.5 inches. Three devices
(numbers 2, 3, and 4) were modified by trimming their bases, thereby
increasing their tip-over rates. This was done to help assess the
relationship between grass and foam by having a broad range of tipover
rates among the devices.(6 and 8)
\2\Testing of a seventh device originally included in phase II
was discontinued because burning material from the device started
fires in the testing field.
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The staff took measurements of conditions during testing, such as
wind-speed and temperature, and determined that these factors had
little effect on the testing results. The staff also measured the level
and topography of the ground used for testing on grass. This testing
was conducted on typical field grass in the Leesburg, Virginia area.
The grass area varied from mostly grass to a mixture of grass and
weeds. Steps were taken to assure that the locations for tests on the
field were randomly selected and were relatively level.(6, 7 and 8)
The staff began testing in phase I with 2-inch thick foams of three
different densities. This thickness was chosen, in part, because the
AFSL standard specifies 2-inch thick medium density foam. However, in
the initial tests, the tipover rates with all three densities of two-
inch thick foam were significantly greater than with grass (39-50
tipovers out of 50 on foam compared with 4 out of 50 on grass).
Therefore, the experimental design was changed to include high density
foam of three smaller thicknesses (0.75, 1.0, and 1.5 inches) in the
hope of achieving better agreement in the tipover rates.(6 and 8)
The results of phase I are summarized in Table 1. None of the three
foams agreed consistently with grass for all three devices. With device
1, only 0.75 inch foam agreed adequately with grass. With device 2
(unmodified), only 1.0-inch foam agreed. With device 3, none of the
foams agreed with grass, although 1.5-inch foam came the closest.
(Specifically, the tipover rates with all three foams were
significantly lower than the rate with grass.) One-inch foam was chosen
for phase II testing because it appeared to be the best overall choice
among the three foams, i.e., it did not consistently underestimate or
overestimate the tipover rates on grass.(6 and 8)
Table 1.--Phase I--Incidence and Percentage of Tipover With Large Multiple Tube Devices on Grass or High Density
Polyurethane Upholstery Foam
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Polyurethane foam
Device Grass --------------------------------------------
0.75 inch 1.0 inch 1.5 inch
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1................................................... 4/50 4/50 14/50* 40/50*
8% 8% 28% 80%
2a.................................................. 32/50 9/50* 25/50 43/50*
64% 18% 50% 86%
3a.................................................. 27/50 2/50* 3/50* 7/50*
54% 4% 6% 14%
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*Significantly different from grass, P<0.05.>aDevice modified to increase tipover rate.
In phase II, six additional devices were tested on grass and 1.0-
inch thick high density foam. The results were then combined with the
results from phase I (Table 2). Once again, there was not consistent
agreement between the tipover rates on foam and on grass. Four devices
(numbers 5, 7, 8, and 9) did not tip over in 50 tests each with grass
and 1.0-inch thick foam. With device 2, the tipover rate with foam (25/
50) did not differ significantly from that with grass (32/50). However,
with device 3, the tipover rate with foam (3/50) was significantly less
than that with grass (27/50). With devices 1 and 6, the tipover rate
with foam was significantly greater than that with grass.(6 and 8)
Table 2.--Phase II--Incidence and Percentage of Tipover With Large
Multiple Tube Devices on Grass or 1.0-Inch High Density Polyurethane
Upholstery Foam
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Device Grass Foam
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1a.................................................. 4/50 14/50*
8% 28%
2b.................................................. 32/50 25/50
[[Page 34925]]
64% 50%
3b.................................................. 27/50 3/50*
54% 6%
4b.................................................. 30/50 36/50
60% 72%
5................................................... 0/90 0/50
0% 0%
6a.................................................. 10/50 25/50*
20% 50%
7................................................... 0/50 0/50
0% 0%
8................................................... 0/90 0/50
0% 0%
9................................................... 0/50 0/50
0% 0%
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*Significantly different from grass, P<0.05.>aDevice has no base.
bDevice modified to increase tipover rate.
The three modified devices (numbers 2, 3, and 4) were also tested
on grass in unmodified form, and they rarely tipped over. Seven of the
nine large devices that were tested have particleboard bases (all
except 1 and 6). Unless they were modified, devices with bases tipped
over only rarely (see table 2), once in 400 tests on grass. On the
other hand, the two devices without bases (1 and 6) tipped over more
frequently on grass, 14 times in 100 tests (see table 2).(6 and 8)
In addition to testing large devices, the staff tested two devices
with tube diameters less than or equal to 1.0 inch on grass and on 1.0-
inch high density foam. With one of these devices, the tipover rate was
significantly greater with foam than with grass (99 tipovers out of 100
on foam compared with 62 out of 100 on grass). This limited testing of
small devices did not support such a dynamic test for small multiple
tube devices.(6 and 8)
The staff concluded that the dynamic stability test it studied
could not reasonably form the basis for a standard addressing the
tipover hazard with large multiple tube devices. Particularly
problematic was the dynamic test's inconsistency. Among the large
devices, there were two cases (devices 1 and 6) in which foam
significantly over-predicted the tipover rate with grass. This means
that a device could fail to comply with such a dynamic standard even
though it is stable when tested on grass. In other words, such a
standard would be excessively stringent.(6 and 8)
In another case (device 3) foam significantly under-predicted the
tipover rate with grass. This means that a device could be very
unstable when operated on grass but could actually comply with such a
dynamic standard based on the foam test.(6 and 8) Such a standard would
not reliably protect consumers.
In statistical terminology, the lack of agreement between foam and
grass is due to a highly significant ``interaction'' between the device
and test surface. That is, different devices behave differently on
different foams, and one cannot predict which foam (if any) would be
appropriate for which device. Thus, the staff determined that there was
not sufficient agreement between tipover rates on 1.0-inch thick high
density foam and on grass.(8)
Moreover, the sensitivity of the dynamic stability test is limited.
In other words, unless a device is very unstable and tips over in
frequent firings, the chances of discovering its tipover potential are
low. It would require observing a very large number of samples to
increase the chance of detecting a tipover. This is impractical for
routine compliance testing.(8) Use of a sensitive test is important for
these devices because a tipover can lead to a fatality.
3. The Tip Angle Test
Because the testing on foam did not provide a reliable dynamic
test, the staff considered whether a static test based on the physical
properties of large multiple tube devices could be developed. The staff
measured the dimensions, mass and static tipover resistance (``tip
angle'') of all the devices tested. The angle at which a device will
first tip over depends on its base-height ratio, mass and center of
gravity. A device's dynamic stability--i.e., its ability to remain
upright--depends on its tip angle as well as other factors such as its
lift force, the firing order, and the time between firings. As
explained below, the staff found that tip angle was one measure that
could predict qualitatively whether a device would tip over while
functioning and also be sufficiently sensitive for routine compliance
testing.(9)
The staff measured the tip angle of devices by placing one edge of
the device against a mechanical stop approximately 1/16-inch high (to
prevent sliding) at the edge of a horizontal hinged platform. The
platform was slowly raised from the horizontal until the device tipped
over. The tip angle was considered to be the angle at which the device
first tips over. The test was repeated for each edge of the device to
determine the minimum tip angle. In this manner, the staff measured the
tip angle for the nine large devices that had been subjected to the
dynamic tests, including the unmodified forms of devices 2, 3, and
4.(9)
The staff then compared these measurements and the results of the
dynamic tests to determine whether there was a relationship between the
minimum tip angle of a device and its dynamic stability on grass (see
table 3).(9)
Table 3.--Static Tipover Resistance and Dynamic Tipover Rate of Large
Multiple Tube Devices
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Tipover rate on
grass
Minimum tip angle (degrees) --------------------- Device
Percent Incidence
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37........................................ 64 32/50 a2
37........................................ 20 10/50 6
37........................................ 8 4/50 1
35, 42b................................... 54 27/50 a3
40........................................ 60 30/50 a4
61........................................ 0 0/90 5
64........................................ 0 0/50 7
65........................................ 2.5 1/40 4
68........................................ 0 0/40 2
69........................................ 0 0/50 9
70........................................ 0 0/40 3
78, 80b................................... 0 0/90 8
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aDevice modified to increase tipover rate.
bDifferent samples of same device.
The staff conducted supplemental tests on large devices other than
those it had examined when considering a dynamic test. One device was a
modified form of device 1, that originally had no base. The staff glued
a 12 inch (30.5 cm) square particleboard base to the device. With this
modification, the tip angle increased from 37 degrees to 68 degrees.
The tipover incidence on grass also decreased, from 4/50 to 0/50. The
additional test with this device demonstrates that a device can be
modified by adding a base, and the device's stability will improve.(9)
The second additional device that the staff tested, an imported
one, had a square plastic base. The tip angle of this device ranged
from 54 to 55 degrees (based on measurements of four individual
samples) and it did not tip over in 50 tests on grass.(16)3
\3\ The staff previously tested this type of device (tip angle:
52-55 degrees and tipover rate: 2/40), but the bases of some of the
devices were cracked. Therefore, the staff does not consider the
earlier tests to be reliable and has not considered them in
determining an appropriate tip angle.(10 and 11)
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Because none of the seven devices originally tested had tip angles
between 43 and 61 degrees, the staff modified the base of a device with
a large
[[Page 34926]]
particleboard base to obtain a tip angle near 50 degrees. The staff
trimmed 2 and 1/16 inches off of the two long edges of the base. The
minimum tip angle of the device ranged from 50 to 51 degrees (based on
measurements of eight individual samples) and it tipped over in 33 out
of 51 tests on grass.(16) Table 4 shows the tip angle and tipover rate
of the three additional devices that the staff tested.
Table 4.--Static Tipover Resistance and Dynamic Tipover Rate of
Additional Large Multiple Tube Devicesa
------------------------------------------------------------------------
Tipover rate on
Minimum tip angle grass
(degrees) ---------------------- Description of device
Percent Incidence
------------------------------------------------------------------------
50-51b.................. 65 33/51 Four-tube device with
base. Base trimmed to
obtain 50 degree tip
angle.
54-55b.................. 0 0/50 Seven-tube device with
plastic base.
68...................... 0 0/50 Seven-tube device. Same
as device 1, but with
added 12 inch base.
------------------------------------------------------------------------
aDoes not include devices that the staff considered to present
inconclusive results.
bRange of values for replicate samples.
The Commission is proposing a standard requiring that large
multiple tube devices must have a minimum tip angle above 60 degrees.
The Commission's data indicate that substantially all of the devices
measuring a tip angle above 60 degrees did not tip over while
functioning on grass. Among such devices, there was only one tipover in
450 tests. On the other hand, devices with tip angles below 60 degrees
had tipover rates as high as 65 percent.
The Commission believes that requiring devices to have minimum tip
angles above 60 degrees offers an appropriate margin of safety. The
fact that no tipovers were observed with a device that had a tip angle
of 54-55 degrees might appear to suggest that a tip angle of 54 degrees
would be sufficient to protect against the tipover hazard. However, a
device that had a tip angle of 50-51 degrees had an unusually high
incidence of tipovers (33/51), as compared with previous tests. Thus,
it is likely that some devices with 55 degree tip angles would tip over
when tested on grass. The Commission concludes that in order to
adequately protect the public, it is appropriate to require that the
minimum tip angle be above 60 degrees.
The staff also measured the tip angles of the two small devices
tested in dynamic tests. The staff did not find a relationship between
the tip angle of these devices and their performance on grass.(9) This
preliminary testing indicates that additional work would be required to
find a proper test for the small devices.
G. Comments Responding to the ANPR
The Commission received 131 comments in response to the ANPR
published on July 1, 1994. While many commenters opposed banning
multiple tube fireworks devices, several commenters supported more
limited action, such as a performance standard or additional labeling.
The significant issues and the Commission's responses are summarized
below.
1. A Possible Ban
a. Banning multiple tube fireworks. Many commenters opposed banning
multiple tube fireworks for use by consumers. Most were consumers
stating that a ban would deprive them of their enjoyment of this
product, with its unique quality of repeating devices using one fuse
and its resemblance to public display fireworks. Commenters opposing a
ban also included professional fireworks display technicians,
manufacturers, distributors, and retailers.
Some commenters took the opposite view, favoring the option of
banning multiple tube devices. These commenters included the National
Fire Protection Association (``NFPA''), the Fire Marshall's Association
of North America and the U.S. Eye Injury Registry. They argued that the
other alternatives mentioned in the ANPR would not be as effective in
reducing injury.
The Commission in its ANPR stated that one possible outcome of the
rulemaking was a ban of all multiple tube mine and shell devices. A
range of other less severe alternatives also was discussed. As
explained above, the Commission is proposing a performance standard for
large devices that would improve the stability, and thus the safety, of
these devices, but still leave them available for consumers to purchase
and display.
b. Economic burden. Many commenters argued that a ban of multiple
tube devices would place a severe economic burden on manufacturers,
distributors, and retailers of consumer fireworks. Some of these
commenters reported that product modifications would result in per unit
cost increases of 16-to-33 percent.
A ban might create a severe economic burden for some firms.
However, the Commission is proposing a performance standard, rather
than a ban, and it is expected that most products would comply with the
standard without modification. The potential economic effect of the
proposed standard is discussed in section H.
c. Illegal fireworks. Some commenters stated that a ban of multiple
tube devices would encourage the spread of illegal fireworks and/or
homemade devices.
As noted, however, the Commission is proposing a performance
standard rather than a ban. In addition, it is expected that most
products would not have to be modified to meet the standard and would
continue to be available. The continued availability of these devices
on the market, especially those that do not require modification to
meet the standard, will be sufficient to avoid any increase in the use
of illegal and/or homemade fireworks.
d. Reduction in injuries. Some commenters argued that there is no
evidence that a ban or other regulation would reduce injuries.
Reports of deaths and injuries, as well as tests conducted by the
staff, show that some multiple tube devices tip over during normal
operation, resulting in the horizontal discharge of the device.
Although the frequency of tipover during CPSC tests has declined in
recent years, any tipover that occurs has the potential to cause injury
or death. Therefore, it is reasonable to expect that a regulation
designed to reduce the frequency of tipover will reduce the potential
for injury and death.
2. A Possible Regulation Other Than a Ban
a. New standards. Many commenters, although they opposed a ban of
multiple
[[Page 34927]]
tube mine and shell fireworks, stated that they were not opposed to
less intrusive actions such as new standards, or additional labeling,
and/or consumer education. Some commenters specifically stated that
they favor a standard to reduce the potential for tipover.
As explained in this notice, the Commission is proposing a
performance standard that would improve the stability, and thus the
safety, of these devices but still leave them available for consumers
to purchase and display.
b. Labeling and education. Some commenters stated that improved
labeling and/or education are sufficient to address the tipover hazard.
In addressing a product hazard, it is most effective to remove the
hazardous design features out of the product. The tipover hazard stems
from the design of the product and could occur even if a user does read
the warning label. Although some users may read and follow the
information on a warning label, fireworks are frequently used at night
when it is too dark for someone to read a warning label. Their frequent
use at parties or celebrations further reduces the likelihood that
warnings will be read and followed.
c. Multiple tube devices have improved. Some commenters argued that
the design and quality of multiple tube devices have improved in recent
years and that regulation is no longer necessary.
Although manufacturers have made design and quality changes and
reduced the dynamic stability hazard of some large multiple tube
devices since the two deaths, additional domestic and imported large
multiple tube mine and shell devices have been distributed which tipped
over while functioning during official CPSC compliance testing. During
fiscal year 1994, 32 official samples of large multiple tube mine and
shell devices were tested for possible tipover while functioning. All
24 imported samples and one domestic sample tipped over while
functioning. Since design and quality changes and development of the
voluntary standard for multiple tube mine and shell devices have not
yet corrected the dynamic stability hazard, the staff believes a
regulation addressing it is necessary.
d. Existing regulations are sufficient. Some commenters stated that
existing regulations are sufficient and that poor quality products
should be addressed on an individual basis.
Existing fireworks regulations under the FHSA do not address the
tipover hazard with multiple tube mine and shell devices. The continued
manufacture and distribution to consumers of devices which fail
official compliance testing for this tipover hazard is evidence that
the existing regulations and compliance actions on a case-by-case basis
have not sufficiently eliminated the dynamic stability hazard.
3. General Regulatory Issues
a. Innovations in fireworks design. The NFPA commented that
innovations in the industry make it difficult to develop adequate
regulations. A standard that works for today's devices might be
inadequate for new products.
The Commission agrees that it is not always possible to anticipate
problems that may occur in the future. However, new fireworks products
created by industry are still required to meet CPSC regulations that
prescribe safety requirements for assorted fireworks devices. If new
products have additional hazardous characteristics, CPSC can evaluate
them and correct any hazards by working with industry or by
promulgating a mandatory safety rule. Moreover, new products that pose
a ``substantial product hazard'' can be addressed through the
Commission's section 15 regulation. See 16 CFR part 1115. In short,
manufacturers remain free to design new devices as long as their
performance meets the CPSC safety requirements.
b. Consumer responsibility. Several commenters stated that the
consumer should be responsible for using fireworks devices safely and
that manufacturers should not have to guard against all conceivable
misuses of their products.
Certainly, consumers must exercise caution when using fireworks.
They should follow the use instructions provided and, particularly with
multiple tube devices, set them on a level, smooth surface. The
Commission's concern, however, is that even when set on a level patch
of grass, these devices may tip over and cause injury or death. It is
reasonably foreseeable that a consumer would set up these devices in an
open field that is covered with grass and is relatively level. This is
the kind of condition for which the staff designed its test procedures.
c. Voluntary standards. Many commenters stated that voluntary
standards efforts are sufficient to address the tipover hazard. Some
took the opposite view.
The AFSL has adopted a voluntary standard involving the use of
polyurethane upholstery foam as a substitute test surface for grass.
The AFSL standard specifies 1-inch foam for devices with any tube that
has an inside diameter less than or equal to 1.0 inch and 2-inch foam
for devices with any tube that has an inside diameter greater than 1.0
inch. However, AFSL has not provided CPSC with any statistical
evaluation of the use of polyurethane upholstery foam as a substitute
test surface. As explained above, CPSC staff did not find sufficient
agreement between grass and foam in the tests that it conducted of the
tipover rates of large multiple tube devices.
The AFSL standard also requires a ``tip angle'' of at least 18
degrees, whereas CPSC tests show that devices with tip angles less than
60 degrees may tip over during operation. Finally, AFSL has stated that
no domestic products are certified to the standard and has not stated
how many imported devices have been tested and certified. Nor has AFSL
provided information regarding the number of products that meet the
standard.
d. Large and small diameter devices should be treated separately.
Some commenters stated that large and small diameter multiple tube
devices should be treated separately, arguing that deaths were
associated only with large diameter devices, while only minor injuries
were associated with small devices. Another commenter argued that all
multiple tube devices should be banned because it would be more
difficult to enforce a ban that applies only to large diameter devices.
As explained above, the Commission is proposing a performance
standard that would apply only to devices with inside diameters of at
least 1.5 inches. In tests conducted by the staff, a performance
standard based on the tip angle test did not appear to be appropriate
for smaller devices. Additional work would be needed to develop a
standard for smaller devices.
e. Comment period. Two commenters complained that the comment
period was too short and came at the busiest time of the year for
people in the fireworks industry.
The Commission believes that the comment period was adequate. The
Commission provided 60 days for comments, which is the maximum amount
of time allowed under the FHSA for comments on an ANPR. Over 100
comments were received. Consistent with Commission policy, the staff
has considered comments received after the close of the comment period.
Finally, all interested persons will have an additional opportunity to
comment on the proposed rule.
f. Rulemaking process and data analysis. One commenter asked how
the CPSC rulemaking process works. The same commenter asked who at CPSC
analyzed the injury and death data and
[[Page 34928]]
what experience they have with multiple tube devices or other
fireworks. The commenter also stated that public servants should be
required to sign their work.
The process for developing a rule under section 2(q)(1)(B) of the
FHSA is explained in section B above. The CPSC staff has been involved
with fireworks safety since the agency's inception. Data on injuries
and deaths are collected and analyzed by statisticians in the
Directorate for Epidemiology and Health Sciences. In some cases,
investigators are assigned to obtain additional information about
specific incidents. Individual staff with experience in fireworks
safety include laboratory scientists, statisticians, and compliance
officers. Prior to issuing the ANPR, the staff prepared a briefing
package for the Commission that included a briefing memorandum,
technical reports, and a draft ANPR. The memorandum and technical
reports identified their respective authors and were available to the
public when they were forwarded to the Commission. At a public meeting,
the staff briefed the Commission on the hazards associated with
multiple tube devices.
g. Unreasonable risk of injury. Some commenters asked about the
statement in the ANPR that the Commission has reason to believe that an
``unreasonable risk of injury'' may be associated with these devices.
These commenters asked what constitutes an unreasonable risk, whether
costs are considered, and why a complete ban is being considered if the
Commission only states that the devices ``may'' present an unreasonable
risk. Some commenters stated that the Commission should not try to
protect consumers against all risks.
For several types of rulemaking proceedings, the Commission's
statutes require a finding that the product to be regulated poses an
unreasonable risk of injury. In this proceeding under section
2(q)(1)(B) of the FHSA, however, it is not necessary for the Commission
to make an unreasonable risk finding. Thus, discussion of unreasonable
risk in the ANPR was unnecessary. Nevertheless, the unreasonable risk
inquiry is similar to the kind of analysis that is required for this
proceeding. 15 U.S.C. 1262(i)(2).
In this proceeding, before the Commission can issue a final rule,
it must determine that the potential benefits of its action concerning
certain multiple tube devices bears a reasonable relationship to the
potential costs. In other words, the anticipated costs cannot be out of
proportion to the expected benefits. Through this inquiry, the
Commission considers the likely consequences of its intended action. A
similar cost-benefit inquiry is conducted when the Commission
determines whether there is an unreasonable risk of injury.
The ANPR used the term ``may'' since the Commission makes only a
preliminary determination at the time it issues an ANPR, which explains
options the Commission is considering but does not itself impose any
requirements. With regard to the question of the desirable level of
protection from risk, the Commission's statutes do not direct it to
seek a ``zero risk level.'' Rather, for the most part, the proper
standard is that of unreasonable risk, as explained above.
4. Incidents Involving Multiple Tube Devices
a. Number of incidents and relative risk. Many commenters said that
the small number of injuries and deaths associated with multiple tube
devices or Class C fireworks does not justify further regulation.
Several commenters compared the risk of a fireworks incident with other
consumer products or activities such as bicycling or other sports. They
argued that because there are fewer injuries associated with fireworks,
little benefit would result from any Commission action. Some commenters
also argued that, compared with other fireworks devices, there were
relatively few incidents with multiple tube devices.
Many factors are considered before the Commission determines
whether to pursue action to address a risk posed by a consumer product.
The number of injuries or deaths associated with a product is only one
of those factors. For example, the Commission also considers the
severity of the hazard. Here, the Commission has reports of two deaths
associated with large multiple tube devices. Clearly this represents
the most severe of possible harms. The Commission also considers the
risk of injury, which depends on exposure. As compared to the other
products and activities cited by the commenters, exposure to fireworks
devices is infrequent and only for short periods of time. In addition,
the Commission considers how susceptible the hazard is to a remedy. The
number of incidents with other products may be greater, but their
amenability to a regulatory remedy may not be as great.
Even though the documented number of fatalities and estimated
number of hospital emergency room-treated injuries is relatively low,
CPSC field tests have found that large multiple tube devices have the
potential for serious injury or death due to tipover during use.
Moreover, the number of incidents reported to CPSC is not the limit on
the number that may have occurred. Except for a 1992 special study,
fireworks incidents have not been routinely assigned for investigation.
Therefore, the cases identified represent only the minimum number that
may have injured consumers.
b. Nature of incidents. Some commenters said that the fatalities
were ``freak'' occurrences or were the result of misuse.
The circumstances documented in the two fatalities should not be
considered as ``freak'' occurrences or outside CPSC's regulatory
authority, because they involved normal and foreseeable use of the
product. The incidents are described in detail in section D above. Both
incidents occurred during family gatherings a day or two after the July
4th holiday. The large devices were purchased and ignited for aerial
sequence, the multiple tube devices tipped over and a projectile load
struck a bystander resulting in death. The bystanders thought that they
were a safe distance away. Circumstances, such as those indicated
above, commonly occur at gatherings of families or friends.
c. Severity of injuries. Three commenters claimed that the injuries
were not severe.
Two documented burn injuries associated with the tipover of small
multiple tube mine and shell fireworks devices were investigated by
Commission staff in 1992. The CPSC staff does not consider these burn
injuries to be minor in nature. In the first report, the victim
received a second degree thermal burn on her right lower leg while
watching a fireworks display in the back yard of a friend's home. She
has permanent scars on her leg as a result of the incident. In the
second report, a 3-year-old boy received a burn to his left inner
forearm and left thigh when a multiple tube tipped over after firing
three shots and fired the fourth shot horizontally along the ground and
into the boy's lap. The child was given first aid and later taken to
the hospital emergency room for additional treatment for second degree
burns. At any rate, the severity of injuries with small devices is
immaterial here because the Commission's proposed regulation addresses
only large devices, with which there have been at least two deaths.
d. Personal experience. Many commenters, including both consumers
and technicians, said that in their personal experience, multiple tube
devices and/or Class C fireworks have not tipped over or caused few or
no injuries.
[[Page 34929]]
However, the cases show that there have been at least two deaths
with these devices and the potential for tipover is high under certain
conditions of foreseeable use. It is foreseeable that the tipover
hazard may result in serious injury or death.
e. Whether device associated with a fatality was illegal. Some
commenters said that one of the devices that was associated with a
fatality was illegal.
Only one of the large multiple tube mine and shell devices involved
in the two deaths was definitely identified by brand name. Tests of
additional units of that device indicated it complied with the
fireworks regulations of the FHSA, which are enforced by CPSC. Some
devices, although legal under the FHSA fireworks regulations, may be
illegal under state, local or other federal laws. Available information
indicates that in the states where the deaths occurred, the purchase,
possession and/or use of large multiple tube mine and shell devices are
restricted or prohibited. However, the devices involved in both deaths
are legal under the FHSA fireworks regulations as long as they conform
to the applicable labeling and performance requirements. Regardless of
whether a particular device violated the law of a state or locality, it
may still be appropriate to provide federal regulation.
f. Lack of perception of danger. One commenter stated that
consumers and spectators do not perceive the danger of fireworks.
The Commission agrees that victims of fireworks injuries may not
perceive the potential danger of watching a private fireworks
exhibition featuring multiple tube fireworks devices. Two people have
died after being hit by a mine from a multiple tube device that tipped
over during use. It is possible that neither victim perceived that they
were in danger for the following reasons:
The fireworks device was not pointing towards them when
ignited.
Each victim was approximately 40 feet from the device.
5. Technical Issues
a. Proposed precautions. Several commenters proposed various
precautions to prevent tipover, such as using bricks to hold the device
down. Some suggested safety equipment such as goggles and a minimum
distance for spectators.
Staff believes that there are several valid safety precautions for
small multiple tube devices. These include the use of bricks to hold a
functioning device down, the use of bricks or cinder blocks as a hard
flat firing surface (if of sufficient size to prevent the device from
bouncing off during its functioning), the use of goggles for eye
protection, and a minimum distance of 70-to-100 feet for spectators.
However, using bricks or cinder blocks as a hard flat firing
surface could create an extremely dangerous situation if the firing
area is too small to prevent the devices from falling or bouncing off
and tipping over. With large devices, normal safety goggles would be
unlikely to prevent impact injuries to the eye.
Requiring a minimum distance of 70-to-100 feet would not be
effective with the majority of the large multiple tube devices, since
these devices shoot their shells 200-to-600 feet into the air. For
other than professional fireworks displays, it is impractical to
suggest that spectators stand this distance from fireworks while they
are being fired.
b. Proposed technical fixes. Commenters proposed various technical
fixes to reduce tipover such as:
Increasing the base-to-height ratio by increasing the
base size;
Lowering the center of gravity by increasing the base
weight;
Reducing the lift force;
Requiring hold down spikes driven into the ground;
Attaching support wires to the device which can then be
staked into the ground.
All of these ideas are valid methods to reduce tipover. The last
two, however, require the consumer to take steps to render the device
safe that may not be feasible in certain circumstances. For instance,
spikes cannot easily be driven into concrete or asphalt surfaces, nor
can support wires. Moreover, consumers firing a variety of fireworks
devices at night may not remember or be able to read specific
instructions accompanying the different devices.
c. Relative safety of multiple tube fireworks. Two commenters
stated that multiple tube devices are safer than other fireworks
devices because they have a larger base.
Not all multiple tube mine and shell devices have a large base. In
fact, some have no base. Others have bases that vary in size from a few
inches in diameter to sizes greater than a foot in diameter. The safety
of a device is not dependent only on the size of the base. Other
factors, such as the firing sequence, internal fuse burn times,
projectile launching force, shell weight, device shape, center of
gravity, quality of materials and construction, and how the consumer
uses the device, all enter into the safety of a device. However,
several of these factors are addressed by the tip angle. As explained
above, devices with bases were not as likely to tip in the staff's
testing as those without bases.
6. General Issues
a. Uses and benefits of fireworks. The Commission received many
comments concerning the general use and benefits of fireworks. Many
commenters noted the importance of fireworks to their celebration of
the nation's birthday, stressing the beauty and patriotism of these
occasions. Some commenters noted the use of fireworks for various
purposes, including agriculture, religious celebrations, and fostering
an interest in science.
The Commission understands the important role that fireworks can
play and the enjoyment that people receive from watching these
displays. Narrowly tailored action to improve the safety of the devices
will not prevent consumers from continuing to enjoy fireworks, and will
increase safety.
b. Over-regulation. One commenter stated that the Commission's
proceeding conflicts with efforts to reduce the size and cost of the
federal government and that the agency is over-regulating. Another
commenter stated that the Commission was over-regulating because this
type of regulation is really a ``states' rights'' issue.
The Commission is a major participant in efforts to ``re-invent''
government by making it more efficient and less costly. This means that
the Commission must find efficient ways to achieve its mission of
protecting consumers from unreasonable risks of injury associated with
consumer products. Consistent with the detailed statutory findings the
Commission must make to issue a rule, the Commission uses its
regulatory authority sparingly. However, it does not mean that the
Commission should abandon its mission. The Commission believes that a
performance standard will reduce the risk of injury and death
associated with multiple tube fireworks devices with the least burden
possible.
With regard to states' rights, the FHSA specifically recognizes
fireworks as products that the Commission may regulate. 15 U.S.C.
1261(q)(1)(B). Of course, states can issue some regulations that the
Commission cannot: The Commission does not have the authority to
regulate the use of a product. For example, states or local governments
may pass legislation requiring that bicycle riders wear helmets. The
Commission cannot issue such requirements. Many states do in fact have
requirements for fireworks that are more stringent than CPSC's. The
Commission's fireworks regulations do not preempt more restrictive
state or
[[Page 34930]]
local requirements. See 15 U.S.C. 1261n(b)(4).
c. Support of regulation. One commenter asked who supports further
regulation of fireworks and what their relationship is to CPSC.
Based on the comments received in response to the ANPR, the NFPA,
Fire Marshals Association of North America (FMANA), and United States
Eye Injury Registry (USEIR) favor a ban of multiple tube devices. The
NFPA and FMANA maintain that only licensed professionals should be
permitted to use fireworks. Other commenters, such as AFSL and the
family of one of the victims, favor additional regulation of multiple
tube devices. Many consumers stated that they oppose a ban of these
devices, but most of them also stated that they do not oppose a
mandatory performance standard or improved labeling. None of these
groups or individuals has any special relationship to CPSC other than
as parties interested in the Commission's activities.
H. The Proposed Standard
The Commission is proposing a standard requiring that multiple tube
devices that have any tube measuring 1.5 inches (3.8 cm) or more in
inner diameter must have a minimum tip angle greater than 60 degrees.
Large multiple tube devices that do not meet the tip angle requirement
would be banned. The tip angle may be measured by placing the device on
an inclined plane, that is, a smooth surface inclined at an angle 60
degrees from the horizontal. The tip angle of each edge of the device
must be measured. The device must not tip over from the 60 degree angle
when measured at any edge of the device.
An apparatus or ``testing block'' for testing multiple tube devices
is illustrated in the figure below. The height and width of the
inclined plane (not including the portion of the plane below the
mechanical stop) must be at least 1 inch (2.54 cm) greater than the
largest dimension of the base of the device(s) to be tested. The test
apparatus must be placed on a smooth, hard surface that is shown to be
horizontal with a spirit level or equivalent instrument. The mechanical
stop must be 1/16 inches (1.6 mm) in height and perpendicular to the
inclined plane. The stop must be positioned parallel to the bottom edge
of the inclined plane and in such a way that no portion of the device
to be tested or its base touches the horizontal surface.
BILLING CODE 6355-01-P
[GRAPHIC][TIFF OMITTED]TP05JY95.000
Side view of an apparatus or testing block for testing compliance
with the proposed 60 degree tilt angle standard.
BILLING CODE 6355-01-C
Any device that cannot be tested using the apparatus described
above or that presents a tipover hazard while functioning even though
it complies with the static test, may be examined to determine whether
it presents a ``substantial product hazard'' under section 15 of the
Consumer Product Safety Act. 15 U.S.C. 2064. If the Commission
determines that a substantial product hazard exists, then appropriate
enforcement action may be taken.
The Commission notes that all of the devices tested complied with
the voluntary standard's limitation of 12 grams of lift powder per
tube. The Commission encourages manufacturers to continue to follow
this aspect of the voluntary standard since the amount of lift charge
may affect tipover. If the Commission observes large devices with more
than 12 grams of lift powder, the Commission could revisit this issue.
1. Potential Effect on Reduction of Injuries
The Commission is aware of two deaths involving the tipover of
multiple tube devices with tubes that have an inside diameter of 1.5
inches or more. The Commission is proposing a performance standard that
would require these devices to have a
[[Page 34931]]
minimum tip angle greater than 60 degrees. According to the
Commission's tests, devices that do not tip over below this angle are
not likely to tip while functioning. Thus, the Commission believes that
devices meeting this requirement are not likely to fall over while
firing and injure operators and spectators.
2. Potential Effect on Consumer Choice and Cost
The proposed standard would only affect large multiple tube
devices. Because most large multiple tube devices currently available
already meet the proposed standard, the proposed standard would likely
have little effect on consumer choice. Devices that do not have a base
would have to add one, but consumers are not likely to perceive any
significant loss of enjoyment as a result. While some devices may be
discontinued, loss of consumer choice would be minimized by the
availability of devices that do comply with the standard. Smaller
multiple tube devices would continue to be available without any
change.
Some number of large devices may have to be modified to add bases.
But, current information indicates that about 25 percent of the large
devices would have to be modified. The price of these devices could
increase by 25 to 30 percent per unit to comply with the standard.(13)
3. Potential Effect on Industry
Although some changes in production may be made if the proposed
amendment were issued on a final basis, the effect on overall
production costs is not expected to be large. As explained above, most
devices already comply with the standard. Modifying those that do not
would add approximately 25 to 30 percent to retail costs, according to
trade and industry sources. This modification would generally consist
of adding a base to devices that do not currently have one.(13)
I. Alternatives
1. Ban
In the ANPR, the Commission stated that two possible alternatives
in this rulemaking were to ban all sizes of multiple tube mine and
shell devices or to ban large devices. The Commission has decided not
to propose either of these alternatives. Although a ban would reduce
the risk of injury and death associated with these devices, the costs
would be much greater than for a standard. As explained above, the
Commission is not proposing any action concerning multiple tube devices
with tubes less than 1.5 inches in diameter. Even a ban of only the
large devices could be very costly since such a prohibition would
eliminate all such devices, which have sales of approximately $24 to
$36 million annually.(13) The Commission believes that a ban of all
large multiple tube devices is not necessary because a standard will
achieve similar benefits with lower costs.
2. Additional Labeling
The current product has extensive labeling. The text of the labels
is quoted in section C above. One alternative available to the
Commission is to add further warning or instructional labeling to large
multiple tube devices or to modify the existing warning. Although this
may have less impact on manufacturers and importers than a performance
standard, the Commission believes that any additional or altered
labeling is unlikely to be effective in reducing the risk of injury.
Some users may read and follow warning labels. However, fireworks
are frequently used at night, reducing the likelihood that warning
labels will be read. Additionally, the fact that fireworks often are
used at a party or celebration further reduces the likelihood that the
user will take the time to read and follow a warning label. Moreover,
tipover may occur even if the user reads and follows the warning
label.(1, Tab E)
In both incidents involving large multiple tube devices, the
victims were spectators who were approximately 40 feet (12 meters) away
from the device. Both victims probably perceived that they were a safe
distance from the device. The devices were placed on smooth, hard
surfaces, although one was angled to shoot over a lake. In light of
these facts, it is unlikely that a warning label would have prevented
these deaths.(1, Tab E)
3. Voluntary Standard
A final alternative is for the Commission to take no mandatory
action, but to encourage the development of a voluntary standard. The
AFSL has developed a voluntary standard applicable to large multiple
tube devices. AFSL's Interim Revised Voluntary Standard for Mines and
Shells--Single or Multiple Shot (January 28, 1993) requires that large
multiple tube devices not tip over (except as the result of the last
shot) when shot on a 2-inch thick medium density foam pad. An AFSL
representative anticipates that the standard will be finalized and
approved by AFSL's Standards Committee and Board of Directors in the
Fall of 1995.(14)
The Commission does not believe that AFSL's existing voluntary
standard adequately reduces the risk of injury due to large devices
tipping over while functioning. The Commission's tests using
polyurethane foam did not find sufficient agreement between performance
on foam and on grass. AFSL has not made available to the Commission any
data supporting its dynamic test.
In addition, even if the AFSL standard were effective, the
Commission does not believe that compliance with the standard would be
adequate. According to AFSL, not a single domestically manufactured
device has been certified as complying with the AFSL standard. The
majority of large multiple tube devices are domestic. An AFSL
representative recently stated that AFSL is working to implement a
certification program and hopes to certify some domestic devices by
mid-June 1995. Although AFSL reports that some shipments of imported
large devices have been tested and certified in China this year, AFSL
has not stated the number of devices. Thus, the Commission has little
evidence that compliance with AFSL's voluntary program would be
adequate.(14)
J. Comment Period
In accordance with section 4 of Executive Order 12889 implementing
the North America Free Trade Act, the Commission is providing 75 days
for public comment on the proposed rule. The Commission is particularly
interested in acquiring additional data on the effect the proposed
standard would have on the price to the consumer, the costs to the
manufacturer, and the benefits to be derived from fireworks that comply
with the proposed standard.
K. Preliminary Regulatory Analysis
a. Statutory Requirement
The Commission has preliminarily determined to issue a performance
standard that would require that multiple tube devices with any tube
measuring 1.5 inches in inner diameter or larger must have a minimum
tip angle greater than 60 degrees. Accordingly, as explained earlier in
this notice, the Commission is preparing to take action under the FHSA
to prohibit large multiple tube devices that do not meet the tip angle
requirement. Section 3(h) of the FHSA requires the Commission to
prepare a preliminary regulatory analysis. 15 U.S.C. 1261(h).
[[Page 34932]]
The following discussion addresses these requirements.
b. Introduction
The Commission is considering amending the FHSA fireworks
regulations to establish new dynamic stability requirements for large
multiple tube devices. Large devices are defined as having an inside
tube diameter of 1.5 inches or greater. These devices present a tipover
hazard when firing. In June 1994, the Commission voted to proceed with
an ANPR to develop a mandatory standard to address the tipover hazard.
Although the ANPR addressed both large and small multiple tube mine and
shell fireworks devices, the Commission proposes that only large tubes
be addressed in a standard to reduce the risk of injury from tipovers.
The proposed standard will require that devices that do not remain
stable at a 60 degree angle in prescribed tests would be banned
hazardous substances. It is expected that devices not passing these
tests will be able to comply with the standard by adding a base of
adequate size.
c. Background
Large multiple tube devices, which are relatively new products,
became popular in the mid 1980's. These devices typically consist of
three or more tubes fused in a series to fire sequentially and grouped
together, sometimes on top of a wooden base. These devices are designed
to fire aerial shells, comets, or mines producing visual and audible
effects from non-reloadable tubes. They are among the largest Class C
fireworks available for direct consumer use.
The National Fireworks Association (NFA) reports that retail sales
of these devices are between $24-$36 million annually, with an
estimated 400,000 to 700,000 units sold per year. Prices range from $30
to $130 per unit, with most devices in the $50-$60 price range. The NFA
reports that domestic devices account for about 75 percent of the
market (by dollar volume) and somewhat less by unit sales. There may be
hundreds of firms engaged in the manufacturing, importing, and
distribution of these fireworks. Imported devices are primarily
manufactured in China, and go through several wholesalers before
reaching the retail vendor.
d. Requirements of the Rule
To amend regulations under the FHSA, the Commission is required to
publish a preliminary and final regulatory analysis containing a
discussion of various factors. These factors include a description of
the potential benefits and potential costs of the rule, including any
benefits and costs that cannot be quantified in monetary terms, and an
identification of those most likely to receive the benefits and bear
the costs. The regulations also require a description of any reasonable
alternatives to the rule, together with a summary description of their
costs and benefits, and a brief explanation of why such alternatives
were not chosen. In addition, the Commission must address the
requirements of Section 603 of the Regulatory Flexibility Act, which
considers the effects on small firms, and the requirement for review
pursuant to the National Environmental Policy Act.
e. Analysis of Proposed Standard
1. Potential benefits. One of the potential risks of injury
associated with large multiple tube devices is the tipover hazard. The
Directorate for Epidemiology and Health Science reports two deaths
associated with the tip-over hazard from January 1, 1988 through
December 1993. This averages to about 1 death every 3 years. The
potential benefits of eliminating fatalities are about $5 million over
a three year period based on the statistical value of life suggested in
recent economic literature.4 In addition, if there have been any
unreported injuries or deaths, the potential benefits would be somewhat
higher.
\4\See Viscusi, W.K., ``The Value of Risks to Life and Health,''
Journal of Economic Literature, December 1993.
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2. Potential costs. Most devices that already have bases will not
have to be modified to meet the standard. The devices that will not
have to be modified are generally domestically manufactured, and
according to the NFA, account for at least 75 percent of the retail
dollar volume of the market. The price of the remaining devices (mainly
imports), representing $6 to $9 million in retail sales value, are
expected to increase by 25 to 30 percent per unit in order to meet the
standard.5 Thus, the total annual cost to consumers of modifying
the affected devices would be between 25-30 percent of retail sales, or
between $1.5 million and $2.7 million. While the standard may result in
certain devices being discontinued, the loss of consumer choice would
be minimized by the availability of close substitutes that comply with
the standard. If the changes eliminate one death every three years, the
cost per life saved will be between $4.5 and $8 million.
\5\Trade and industry sources report that modifying the devices
would add about 25 to 30 percent to production costs. Additionally,
anecdotal evidence from sales catalogues indicates that comparable
devices without bases are significantly less expensive.
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f. Alternatives to the Rule
The Commission could consider several other alternatives,
including: A product ban; modifying large and small tubes; and deferral
to the voluntary standard.
1. Product ban. The expected benefits to society of banning all
large multiple tube mine and shell devices would be one life saved
every three years, the same as the potential benefits of the
standard.6 However, costs to society of a ban (as opposed to a
standard) would be much greater, because under a ban consumers would
not be able to use large tube devices. While these costs cannot be
measured precisely, the fact that consumers are willing to spend $24-
$36 million annually to buy the large tube devices suggests that the
costs could be substantial.
\6\The benefits might be somewhat higher if there are other
hazards in addition to the tip-over hazard that are associated with
multiple tube mine and shell fireworks devices. However, other
hazards have not been identified.
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2. Modify large and small tubes. Small multiple tube mine and shell
devices are defined as having tubes with an inside diameter of less
than 1.5 inches. Trade sources report that annual retail sales range
from $600 million to $1 billion, with an estimated 50 million to 110
million units sold per year. There are an estimated 150 injuries per
year with small devices and no reported fatalities. The total injury
costs from these incidents are an estimated $750,000 per year. It is
not certain what percentage of the market for small devices would be
affected by a dynamic stability standard. However, observations from
sales catalogues indicates that the majority of the small devices would
have to be modified.
Given that annual retail sales are as high as $1 billion and that
injury costs are less than $1 million per year, it is likely that the
costs of applying the mandatory standard to small devices would be
substantially greater than the benefits. For example, if 50 percent of
the market for small devices had to be modified, then the total annual
cost to consumers could be as high as $150 million.
3. Defer to the voluntary standard. The American Fireworks
Standards Laboratory (AFSL) revised its standard for mines and shells
on January 28, 1993, in order to address the potential tipover hazard
associated with multiple tube mine and shell devices. The AFSL's
revisions included a dynamic stability test for all multiple tube
[[Page 34933]]
devices. However, the Commission has concerns over the effectiveness of
and conformance to the AFSL standard. Although AFSL has stated that
some imported large devices have been tested and certified to its
standard, the Commission does not know how many or which devices.
Consequently, deferring to the voluntary standard might not address any
of the fatalities.
L. Regulatory Flexibility Certification
Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.,
agencies are generally required to prepare proposed and final
regulatory flexibility analyses describing the impact of the rule on
small businesses and other small entities, unless the head of the
agency certifies that the rule will not, if promulgated, have a
significant effect on a substantial number of small entities. The
Commission staff has analyzed the potential effect of the proposed
amendment on industry. Available information suggests that the proposed
standard will not have a significant impact on a substantial number of
small businesses. While there are probably hundreds of small businesses
engaged in the manufacturing, importing, and distribution of fireworks,
the standard will only affect those firms involved in the production
and distribution of large multiple tube devices that will need to be
modified. As described above, the devices that will need to be modified
account for only about 25 percent of the large multiple tube mine and
shell devices that are sold in the U.S. Moreover, the standard will not
affect the small multiple tube mine and shell devices which make up the
bulk of the market. The devices subject to the standard constitute only
a small segment of the overall fireworks market.
Thus, the Commission certifies that no significant adverse impact
on a substantial number of small firms or entities would result from
the proposed amendment.
M. Environmental Considerations
The Commission's regulations governing environmental review
procedures provide that the amendment of rules or safety standards
establishing design or performance requirements for products normally
have little or no potential for affecting the human environment. See 16
CFR 1021.6(c)(1). The Commission does not foresee that this proposed
amendment to the existing fireworks regulations would involve any
special or unusual circumstances that might alter this conclusion.
The proposed standard is not expected to affect existing packaging,
or materials in construction now in manufacturers' inventories.
Existing inventories of finished products would not be rendered
unusable through the implementation of the rules. Any remaining
inventory not imported or manufactured after the effective date can
probably be modified to meet the new standard.
The requirements of the standard are not expected to have a
significant effect on the overall materials used in the production or
packaging or in the amount of materials discarded after the standard
goes into effect. Therefore, no significant environmental effects will
result from the proposed standard.
Thus, the Commission concludes that no environmental assessment or
environmental impact statement is required in this proceeding.
N. Effective Date
The rule will take into account the ordering season for fireworks
and is proposed to take effect not earlier than 6 months from
publication of the final rule in the Federal Register. It will apply to
multiple tube fireworks devices with any tube measuring 1.5 inches or
more in inner diameter that enter commerce or are imported on or after
that date.
List of Subjects in 16 CFR Part 1500
Consumer protection, Hazardous materials, Hazardous substances,
Imports, Infants and children, Labeling, Law enforcement, and Toys.
Conclusion
For the reasons given above, the Commission preliminarily finds
that cautionary labeling required by the FHSA is not adequate for
multiple tube devices with any tube 1.5 inches (3.8 cm) or larger in
inner diameter and that, due to the degree and nature of the tipover
hazard presented by these devices, in order to protect the public
health and safety it is necessary to keep these devices out of commerce
unless they have a minimum tip angle of at least 55 degrees. Thus, the
Commission proposes to amend Title 16 of the Code of Federal
Regulations to read as follows:
PART 1500--[AMENDED]
1. The authority for Part 1500 continues to read as follows:
Authority: 15 U.S.C. 1261-1278.
2. Section 1500.17 is amended to add a new paragraph (a) (12) to
read as follows:
(a) * * *
(12) Multiple tube mine and shell fireworks devices that have any
tube measuring 1.5 inches (3.8 cm) or more in inner diameter and have a
minimum tip angle greater than 60 degrees in accordance with the
requirements of Sec. 1507.12.
* * * * *
PART 1507--[AMENDED]
1. The authority for Part 1507 continues to read as follows:
Authority: Sec. 2(q)(1)(B), (2), 74 Stat. 374 as amended 80
Stat. 1304-1305; (15 U.S.C. 1261); sec. 701(e), 52 Stat. 1055 as
amended; 21 U.S.C. 371(e)); sec. 30(a), 86 Stat. 1231; 15 U.S.C.
2079(a)).
2. Part 1507 is amended to add a new Sec. 1507.12 to read as
follows:
Sec. 1507.12 Multiple tube mine and shell devices.
(a) Application. Multiple tube mine and shell devices with any tube
measuring 1.5 inches (3.8 cm) or more in inside diameter shall be
subject to the tip angle test described in this section.
(b) Testing procedure. The device shall be placed on a smooth
surface which can be inclined at an angle greater than 60 degrees from
the horizontal as shown in figure 1 below. The height and width of the
inclined plane (not including the portion of the plane below the
mechanical stop) shall be at least 1 inch (2.54 cm) greater than the
largest dimension of the base of the device to be tested. The test
shall be conducted on a smooth, hard surface that is horizontal as
measured by a spirit level or equivalent instrument. The mechanical
stop shall be 1/16 inches (1.6 cm) in height and perpendicular to the
inclined place. The stop shall be positioned parallel to the bottom
edge of the inclined plane and in such a way that no portion of the
device to be tested or its base touches the horizontal surface. The
device shall not tip over from the 60 degree incline. The procedure
shall be repeated for each edge of the device.
BILLING CODE 6355-01-P
[[Page 34934]]
[GRAPHIC][TIFF OMITTED]TP05JY95.001
Figure 1
Side view of an apparatus or testing block for testing compliance
with the proposed 60 degree tilt angle standard.
BILLING CODE 6355-01-C
Dated: June 27, 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, Room 502, 4330
East-West Highway, Bethesda, Maryland 20814:
1. Multiple Tube Mine and Shell Fireworks Devices: Advance Notice of
Proposed Rulemaking; Request for Comments and Information, 59 Fed.
Reg. 33928 (July 1, 1994).
2. Briefing Package: Multiple Tube Mine and Shell Fireworks Devices,
Consumer Product Safety Commission, May 31, 1994.
3. Briefing Memorandum on Multiple Tube Mine and Shell Fireworks
Devices, from Ronald L. Medford, HIR to the Commission, June 8,
1995.
4. Memorandum from Michael Babich, Project Manager, HSHE,
``Responses to Public Comments on Multiple Tube Mine and Shell
Devices,'' May 22, 1995.
5. Memorandum from Leonard Schacter, EPHA, to Michael Babich, HSHE,
``Annual Estimated Injuries Associated with Multiple tube Mine and
Shell Fireworks Devices,'' June 1, 1995.
6. Memorandum from James Carleton and Jay Sonenthal, LSHS, to
Michael Babich, HSHE, ``Results for Dynamic Stability Testing of
Large Multiple Tube Mine and Shell Devices, May 18, 1995.
7. Memorandum from Thomas Caton, ESME, to Michael Babich, HSHE,
``Fireworks Testing: Test Surface Roughness,'' May 22, 1995.
8. Report from Terry Kissinger, EPHA, to Michael Babich, HSHE, ``A
Comparison of the Tipover Performances of Multiple Tube Mine and
Shell Devices on Grass and Foam,'' January 1995.
9. Memorandum from George F. Sushinsky, LSEL, to Michael Babich,
HSHE, ``Dimensional and Stability Measurements of Fireworks,'' March
10, 1995.
10. Memorandum from George F. Sushinsky, LSEL, to Michael Babich,
HSHE, ``Tip Angle Measurements of a Device with a Plastic Base,''
April 13, 1995.
11. Memorandum from Jay Sonenthal, LSHL, to Michael Babich, HSHE,
``Test of a Device with a Plastic Base,'' May 22, 1995.
12. Memorandum from Sam Hall, CERM, to Michael Babich, HSHE,
``Acceptable Tipover Rate for Multiple Tube Devices,'' November 21,
1994.
13. Memorandum from Anthony Homan, ECPA, to Michael Babich, HSHE,
``Multiple Tube Mine and Shell Fireworks Devices--Regulatory
Analysis,'' May 18, 1995.
14. Memorandum from Sam Hall, CERM, to Michael Babich, HSHE,
``AFSL's Interim Voluntary Standard for Large Multiple Tube Mine and
Shell Devices and Staff's Proposed Mandatory Static Performance
Standard, May 25, 1995.
15. Product and Performance Standard for Mines and Shells--Single or
Multiple Shot,'' Version 1.1, American Fireworks Standards
Laboratory, Bethesda, Maryland, January 28, 1993.
16. Memorandum from Neil Gasser, LSHL, to Michael Babich, HSHE,
``Additional Tests of Multiple Tube Mine and Shell Devices,'' June
8, 1995.
[FR Doc. 95-16313 Filed 7-3-95; 8:45 am]
BILLING CODE 6355-01-P
