[Federal Register Volume 61, Number 153 (Wednesday, August 7, 1996)]
[Proposed Rules]
[Pages 41043-41046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20150]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1507
Proposed Rule: Fireworks Devices; Fuse Burn Time
AGENCY: Consumer Product Safety Commission.
ACTION: Proposed rule.
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SUMMARY: The Commission proposes to amend its regulation under the
Federal Hazardous Substances Act that applies to the fuse burn times of
fireworks devices. The proposal would change 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 allow manufacturers to
more consistently produce fireworks that do not fall below a 3-second
burn time, thus reducing hazardous short burn times. Further, the
increase in fuse burn time to 9 seconds will not create any additional
risk of injury to consumers. Therefore, the amendment should increase
the safety of users of fireworks. The amendment was requested in a
petition from the American Fireworks Standards Laboratory.
DATES: Comments on the proposal should be submitted no later than
October 21, 1996.
ADDRESSES: Comments to the Commission on the proposed rule should be
mailed 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 20814-4408, telephone (301) 504-0800.
Comments also may be filed with the Commission by facsimile to (301)
504-0127, or by electronic mail via info@cpsc.gov. Comments should
include a caption or cover indicating that they are directed to the
Office of the Secretary and are comments on the proposed revisions to
the fuse burn time of fireworks.
Comments on potential changes to the Commission staff's current
enforcement policy for fuse burn times, and on possible interim
forbearance of enforcement against fuse burn times of up to 9 seconds,
should be mailed to David Schmeltzer, Assistant Executive Director for
Compliance, Consumer Product Safety Commission, Washington, DC 20207.
FOR FURTHER INFORMATION CONTACT: Carolyn Meiers, Directorate for
Engineering Sciences, Consumer Product Safety Commission, Washington,
DC 20207; telephone (301) 504-0468 ext. 1281; or e-mail to cpsc/
g=Carolyn/i=K./s=Mo=cpsc@mhs.attmail.com
SUPPLEMENTARY INFORMATION:
I. Introduction and Background
Introduction. In this notice, the Consumer Product Safety
Commission (``the Commission'' or ``CPSC'') proposes to amend its
regulation under the Federal Hazardous Substances Act (``FHSA'') that
governs the allowable range of times that fuses for fireworks may burn
before the device ignites. 16 CFR 1507.3(a)(2). The Commission seeks
comments from interested members of the public on the proposed
amendment. The Commission also invites comments from counterpart
agencies in foreign governments, foreign standards developers, and
others who might be interested in this proposed amendment. This
invitation is in addition to the routine international notification of
this proposed rule that is provided by the World Trade Organization
Agreement on Technical Barriers to Trade.
Background. Commission regulations under the FHSA require fireworks
devices (other than firecrackers) 1 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 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.
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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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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 result in an increase of injuries to consumers who returned
to live fireworks assuming 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. The objective of the study was to determine
if consumers would return to a fireworks device within 9 seconds after
lighting the fuse.
In September 1995, the CPSC was petitioned by AFSL (Petition HP 96-
1) to make the same modification to the regulation under the FHSA that
governs fireworks fuse burn time as did the previous petition from
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 seconds 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 of fuses burning less than 3 seconds.
AFSL states that increasing the upper range of the fuse burn time
to 9 seconds also will increase compliance with the 3 second
requirement because: (1) It will improve fuse design and quality, (2)
it will make fuse burn time performance more consistent, and (3) it
will allow for the variability in fuse burn time caused by
environmental conditions. Any such improvement in compliance with the
3-second fuse burn time requirement would likely increase safety.
After considering the available information, the Commission voted
to grant Petition HP 96-1. The available information and the reasons
for the Commission's decision are explained below.
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 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
[[Page 41044]]
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.
A proceeding to amend a rule issued under section 2(q)(1)(B) of the
FHSA is subject to the provisions of section 701(e) of the Federal
Food, Drug, and Cosmetic Act (``section 701(e)''), 21 U.S.C. 371(e). 15
U.S.C. 1261(2)(q)(2). Under section 701(e), if the petition of an
interested person shows ``reasonable grounds'' for the action
requested, the Commission is required to begin a rulemaking. The
fireworks types that would be subject to the proposed amendment, and
that have fuse burn times outside the proposed 3 to 9 second range, are
already banned hazardous substances. Because the amendment proposed
below will not declare any additional products to be banned hazardous
substances, an advance notice of proposed rulemaking is not required
for this proceeding. See FHSA Sec. 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.
Under section 701(e) of the FDCA, once the Commission issues a
final rule in this type of proceeding, persons who would be adversely
affected by the rule may file objections with the Commission, stating
the grounds therefor, and request a public hearing on those objections.
21 U.S.C. 371(e). If material objections were filed, an adjudicatory
hearing to receive evidence concerning the objections would be held
before an administrative law judge (``ALJ''). After the ALJ's decision,
further appeals could be made to the Commission and ultimately to the
courts. 21 U.S.C. 371(e)-(f).
III. Injury Data
The CPSC conducted a special study of firework injuries from June
23 through July 23, 1995. The Special Study focused on this time period
because of the highly seasonal nature of fireworks injuries. The injury
cases in the special study were identified through the National
Electronic Injury Surveillance System (``NEISS''), CPSC's database of
cases from a sample of hospital emergency rooms.
Only six sample cases potentially relevant to fuse burn times were
identified. The reports of these injuries do not provide quantitative
measures of fuse burn times. Characterizations of whether the time
interval before a device ignites is long or short depend upon the
victims' or onlookers' subjective perceptions. It could not be
determined how the respondents' perceptions related to the CPSC's fuse
burn time standard.
Because of the small number of sample cases and the subjectiveness
of the respondents' perceptions of time, a national estimate of the
injuries associated with long or short fuse burn times cannot be
projected.
IV. Safety Effects of Raising the Upper Burn Time Limit to 9
Seconds
As described in greater detail below, the number of occurrences of
short fuse burn times--those below 3 seconds--would likely decline
appreciably if the proposed fuse burn time range of 3 to 9 seconds is
adopted. This clearly would have a positive effect on the safety of the
users of the fireworks subject to the fuse burn time regulation.
In the past, the Commission had been concerned that a 9-second fuse
burn time could cause consumers to mistakenly believe that a fireworks
device was a dud. More specifically, the concern was that a longer fuse
burn time could increase the risk of injury if consumers returned to
the firework before it ignited. To address this concern, AFSL
contracted with AIR to conduct a human factors study to determine how
long fireworks users take to begin to return to a firework that has not
gone off.
This AIR study appears to present the only data currently available
that relate user approach behavior to the fuse burn time of firework
devices. The study found that only one of the 30 participants began to
approach the device within 9 seconds. The remainder of the participants
began to approach the devices from 9 seconds to 5 minutes after
igniting the fuse. The median approach time for participants in the
last of four trials was 19 seconds. The study concluded that an
estimated 95% of the participants would not begin to approach the
unexploded firework until after 9 seconds.
In the AFSL study, no participant actually reached the location of
the firework device within 9 seconds. The only participant who began to
approach the fireworks device before 9 seconds began the approach at 8
seconds. However, he did not actually reach the firework until
approximately 35 seconds after lighting the fuse. The 19-second median
approach time is approximately twice as long as the proposed 9-second
upper limit. These data indicate that consumers are not likely to
return to a fireworks device within 9 seconds of fuse ignition. The
study also indicated that consumers are likely to use smoke and noise
cues emitted by a fireworks device as a guide to when a device can be
safely approached.
Based on this study, the Commission's Human Factors staff does not
expect an increase in injuries associated with increasing the maximum
fuse burning time to 9 seconds. The Commission preliminarily concludes
that increasing the range of fuse burn times from 3 to 6 seconds to 3
to 9 seconds will reduce injuries caused by fireworks with short fuse
burn times and will not create any additional hazard associated with
long fuse burn times.
V. Compliance with the Current Regulation
The Commission's Office of Compliance, Division of Regulatory
Management, conducts an ongoing fireworks surveillance program to
identify fireworks that do not comply with the Commission's
regulations. Results of this program for fiscal years 1990 through 1995
show that fuse burn time violations exceeded any other type of
fireworks violation. For this time period, between 40 and 50 percent of
all fireworks violations were attributed to fuse burn time.
Surveillance data may not represent all firework devices, because
devices tested for compliance to regulations are not randomly selected.
In addition, the number of violations leading to legal action has been
affected from year to year by variations in the staff's enforcement
policies.
As part of the CPSC's fireworks compliance testing program, the
Commission's Directorate for Laboratory Sciences recorded more than
26,700 individual fuse burn times from tests during the period FY 1990
through FY 1995. These fuse burn times excluded firecrackers, since
they are not covered by this regulation, and Roman candles, since they
are subject to a different enforcement policy.
Comparisons of fuse burn times measured over these years suggest an
overall improvement in fuse performance. Short fuse burn times (less
than 3 seconds) decreased from about 13 percent of the fireworks tested
to 8 percent. Long fuse burn times (greater than 6 seconds) decreased
from about 10 percent of the fireworks tested to about 5 percent. Based
on these test data, the staff estimates that the compliance rate for
fuses could reach about 98 percent if the proposed changes to the fuse
burn
[[Page 41045]]
time regulation are enacted.3 Short fuse burn times violations
could drop to less than 1 percent, while fuse burn times greater than 9
seconds could be expected to be about 1 percent.
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\3\ These calculations assume that no changes would be made to
fuse design or quality (except for a longer fuse) and that
manufacturers would target a fuse burn time of 6 seconds.
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VI. 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 will simply provide a wider range of
allowable times. Thus, the Commission would like to make the amendment
effective as soon as possible. Under 21 U.S.C. 371(e), 30 days is
allowed after the final rule is issued to receive any objections to the
rule. This section also provides that the final rule may not become
effective before the 30-day period for objections expires. Therefore,
the Commission proposes to make the amendment effective 31 days after
the final rule is published in the Federal Register.
If the Commission votes to issue the proposed amendment as a final
rule, the Commission's staff intends to change its policy of not
enforcing against fuse burn time violations as low as 2 seconds that
now applies to all fireworks except reloadable shell devices, bottle
rockets, and jumping jacks which exhibit erratic flight. After the
change in policy, the staff would strictly enforce the 3-second fuse
burn time for all fireworks, since there will no longer be any valid
reason why industry cannot comply with the 3-second lower burn time.
The current policy will continue with respect to fuse burn times of 2
to 3 seconds, however, for a time after the effective date that is
sufficient to minimize any adverse economic effects on manufacturers.
Comments on how long the enforcement policy allowing 2-3 second fuse
burn times should continue after the effective date should be sent to
David Schmeltzer, Assistant Executive Director for Compliance, Consumer
Product Safety Commission, Washington, DC 20207.
In addition, the Commission's staff is considering an interim
policy of allowing fuse burn times between 6 and 9 seconds. This
interim policy could be instituted after the end of the comment period
on this proposal and before the rule is effective. Since increasing the
allowable upper limit of fuse burn time to 9 seconds is expected to
increase consumer safety, this interim relief appears to be in the
public interest. Persons wishing to comment on the staff's plans to
provide this interim relief should send their comments to David
Schmeltzer, Assistant Executive Director for Compliance, Consumer
Product Safety Commission, Washington, DC 20207.
VII. Initial 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.
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.4
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\4\ The Regulatory Flexibility Act provides that 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.
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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 proposed 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.
Any necessary adjustments to the manufacturing process will take
approximately 1 week to accomplish once notification is received,
according to the industry. Since fireworks which comply with the
current 3 to 6 second fuse burn time requirement would automatically
comply with the proposed 3 to 9 second fuse burn time requirement (and
because the existing enforcement policy will be continued for a
reasonable period of time), there will be no economic impact resulting
from the proposed 31-day effective date.
VIII. 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 proposed
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
range of fuse burn times will increase from 3-6 seconds to 3-9 seconds,
the change will not cause any increase in noncomplying fireworks, which
would require disposal. Therefore, no significant environmental effects
are expected from the proposed rule if it is adopted. Accordingly,
neither an environmental assessment nor an environmental impact
statement is required.
IX. Conclusions
For the reasons given above, the Commission preliminarily concludes
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 believes 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 believes that the risk associated with
short fuse burn times is of more 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.
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,
[[Page 41046]]
of the Code of Federal Regulations is proposed to be 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: August 2, 1996.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 96-20150 Filed 8-6-96; 8:45 am]
BILLING CODE 6355-01-P
