Multiple Tube Mine and Shell Fireworks Devices: Advance Notice of Proposed Rulemaking; Request for Comments and Information

CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1500

Multiple Tube Mine and Shell Fireworks Devices: Advance Notice of

Proposed Rulemaking; Request for Comments and Information

AGENCY: Consumer Product Safety Commission.

ACTION: Advance Notice of Proposed Rulemaking.

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SUMMARY: Based on currently available information, the Commission has

reason to believe that an unreasonable risk of injury may be associated

with multiple tube mine and shell fireworks devices. Requirements

currently enforced by the Commission may not adequately address the

risk of serious injury posed by these fireworks devices. The Commission

is issuing this advance notice of proposed rulemaking (``ANPR'') under

the Federal Hazardous Substances Act to initiate the process of

amending its fireworks regulations for all multiple tube mine and shell

fireworks devices. This action applies to all multiple tube mine and

shell devices which fire sequentially into the air.

The ANPR addresses the issue of how to reduce the risk of injury

associated with multiple tube mine and shell devices. One possible

outcome of the proceeding would be to amend existing requirements for

fireworks devices to ban all multiple tube mine and shell devices, or

to ban specific multiple tube mine and shell devices found to present

an unreasonable risk of injury. Alternatively, the Commission is also

considering whether to amend the fireworks regulations to reduce the

risk of injury by (1) requiring additional labeling on these particular

devices, or (2) setting design or performance criteria for these

devices (by banning devices not in compliance). A final alternative is

for the Commission to refrain from issuing a mandatory requirement and

encourage the development of a voluntary standard.

The Commission solicits written comments from interested persons

concerning the risk of injury and the regulatory alternatives discussed

in this notice, as well as other possible methods to reduce or

eliminate these risks.

DATES: Written comments in response to this notice must be received by

the Commission no later than August 30, 1994.

ADDRESSES: Comments should be mailed, preferably in five (5) copies, to

the Office of the Secretary, Consumer Product Safety Commission,

Washington, D.C. 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: Linda Smith, Project Officer,

Directorate for Epidemiology, Consumer Product Safety Commission,

Washington, DC 20207; telephone (301) 504-0470.

SUPPLEMENTARY INFORMATION:

A. Background

Multiple tube mine and shell fireworks devices are a non-reloadable

type of multiple shot device designed to fire aerial shells and/or

comets and produce visual or audible effects in the air. Mines are

fireworks devices intended to produce a low altitude aerial effect.

Shells are aerial devices designed to be propelled into the air where a

small explosive charge breaks the shell and creates a display of stars,

reports, and other effects. Mines and shells may have different

propellant limits but are generally combined into a single unit and in

most cases it is difficult to distinguish between a mine and a shell.

The products referenced in this proceeding generally contain both

mines and shells and will be referred to as multiple tube mine and

shell devices. These devices are manufactured domestically and are also

imported.

Multiple tube mine and shell devices are comprised of several

vertical tubes with a common fuse, either with or without a horizontal

base. Because these devices are designed to fire shots sequentially,

there is a danger that after the first shot or few shots the device may

become unstable and tip over. The other shots then may fire

horizontally or at an angle and may hit the operator or spectators. The

Commission is aware of two deaths and two burn injuries to spectators

involving multiple tube mine and shell devices in this scenario.

Because of the severe nature of injuries involved, the Commission is

taking action to initiate this rulemaking proceeding.

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 3 to 6 seconds, resist side

ignition, and remain securely attached to the device; a base-to-height

ratio requirement for base stability; a requirement to prevent blowout

of the tube; and a limit on audible ``reports'' to 2 grains of powder.

Id. at Part 1507. Finally, additional Commission regulations prescribe

specific warnings required on various legal fireworks devices, Id. at

1500.14(b)(7), and designate the size and location of these warnings.

Id. at 1500.121.

Large multiple tube mine and shells, also called display racks or

multiple tube aerial display devices, were first produced by domestic

manufacturers around 1986. In July 1991 the first of two known deaths

to a spectator, a 3 year old boy, resulted from the tip-over of a large

multiple tube mine and shell device. The Commission staff investigated

the incident and determined that the device involved in the incident

presented a substantial product hazard under the Consumer Product

Safety Act (15 U.S.C. 2064(b)) because it posed a risk of serious

injury or death. Commission testing of this multiple tube mine and

shell device indicated that it complied with Commission regulations

regarding base to height ratios (sometimes referred to as static

stability), but that it tipped over when functioning, posing a hazard

to users. The manufacturer of the device then issued a recall of the

11,900 units distributed to retail stores and fireworks stands

nationwide.

The Commission informed the fireworks industry, including the

American Pyrotechnics Association (APA) and the American Fireworks

Standards Laboratory (AFSL), of the potential for death and serious

injury that large multiple tube mine and shell devices presented. In

October 1991, several domestic manufacturers of multiple tube mine and

shell devices began developing a performance test (sometimes referred

to as a dynamic stability test) to test the tip-over-while-functioning

hazard of large multiple tube mine and shells. This test utilized a two

inch thick block of medium density (2 pounds per cubic foot)

polyurethane upholstery foam to simulate the function of the device

when used on grassy or other uneven surfaces. AFSL also began work to

revise its voluntary standard for these devices to address the dynamic

stability problems they presented. AFSL issued an interim revised

voluntary standard for mines and shells in January 1993.

In addition, the Commission collected samples of large multiple

tube mine and shell devices manufactured domestically, and tested the

devices in accordance with FHSA requirements. The Commission also

tested the devices for the tip-over-while-functioning hazard using the

industry dynamic stability test. While the devices complied with FHSA

requirements, dynamic stability testing on a foam surface revealed

product tip overs while functioning. Therefore, the Commission staff

preliminarily determined that the products presented substantial

product hazards under the CPSA. As a result, in June and July 1992 four

different domestic manufacturers of large multiple tube mine and shell

devices recalled six different devices totaling approximately 16,600

units.

In July 1992 the Commission became aware of a death to a 65 year

old woman from injuries received when a large multiple tube mine and

shell device with a base tipped over while functioning. The device

fired an aerial shell horizontally, striking the victim in the left

temple and eye. The Commission determined that the description of the

device was similar to the multiple tube mine and shell device involved

in a similar death in July 1991.

The Commission continued to investigate this safety problem. In

June 1993, another domestic manufacturer of three different large

multiple tube mine and shell devices initiated a recall of

approximately 150,000 units after the Commission staff preliminarily

determined that the devices presented a substantial hazard because they

tipped over when tested on foam.

The Commission also learned that large multiple tube mine and shell

devices without bases were being manufactured and imported from China.

The Commission collected samples of these devices and tested them for

compliance with FHSA requirements and using the dynamic stability foam

test described earlier. The Commission determined that while the

devices complied with FHSA requirements, they tipped over while

functioning on a foam surface, posing a substantial product hazard

which could result in serious injury or death. In June 1993, in

response to the Commission tests, three different importers recalled

six different multiple tube mine and shell devices without bases,

totaling 20,450 units. The Commission also informed APA and AFSL of the

recalls, and they informed their members. As a result, several

additional importers ceased distribution of thousands of incoming

units.

Under the Commission's existing regulations, multiple tube mine and

shell devices that comply with applicable FHSA requirements are not

banned hazardous substances. However, the Commission staff has

information from which it could be concluded that these devices may

pose an unreasonable risk of injury. As noted above, devices that

complied with the base stability requirement did tip over while

functioning. Thus, the existing regulations do not adequately address

dynamic stability or stability-while-functioning-hazards posed by these

devices. No other changes to the existing fireworks regulations are

within the scope of this ANPR.

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--they are flammable or

combustible substances, or they generate pressure through

decomposition, heat, or other means, and they ``may cause substantial

personal injury * * * 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 of protecting the

public. 15 U.S.C. 1261(q)(1)(B). A proceeding to promulgate a

regulation classifying a substance as a banned hazardous substance

under section 2(q)(1) of the FHSA is governed by the requirements in

sections 3(f)-(i) of the FHSA, and by the provisions of section 701(e)

of the Federal Food, Drug, and Cosmetic Act (``FDCA''), 21 U.S.C.

371(e); See also section 2(q)(2) of the FHSA, 15 U.S.C. 1261(q)(2).

The process to classify a product as a banned hazardous substance

is initiated by publication of an advance notice of proposed rulemaking

(``ANPR'') as provided in section 3(f) of the FHSA. 15 U.S.C. 1262(f).

The Commission must review and consider comments received in response

to the ANPR including any voluntary standards submitted in response to

its invitation. If the Commission then decides to continue the

rulemaking proceeding, it must publish the text of the proposed rule

along with a preliminary regulatory analysis that includes a

preliminary description of potential costs and benefits of the proposal

and reasonable alternatives to the proposed regulation. 15 U.S.C.

1262(g) & (h).

After reviewing any comments on the proposed rule, the Commission

would then decide whether to issue a final rule. If the Commission

decided to proceed, it would publish the text of the final rule and a

final regulatory analysis that includes a description of potential

costs and benefits, a description of alternatives considered, and a

summary of significant issues raised by comments submitted in response

to the proposal. 15 U.S.C. 1262(i)(1). In addition, in order to issue a

final regulation, the Commission must make findings concerning

voluntary standards, the relationship of the costs and benefits of the

rule and the burden imposed by regulation. 15 U.S.C. 1262(i)(2).

If the Commission ultimately decided 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 (called a final order), interested persons 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. If no objections are filed, the order becomes effective on

the last day for objections. The filing of objections stays the

implementation of those provisions to which objections are directed.

After the hearing, the presiding officer would issue an order, based

upon substantial evidence. 21 U.S.C. 371(e); 16 CFR Part 1502.

C. The Product

Multiple tube mine and shell fireworks are Department of

Transportation (``DOT'') 1.4G explosive devices (formerly Class C

common fireworks devices) available to consumers that may be used at or

near households. Commission regulations require that multiple tube mine

and shell devices bear the following conspicuous label:

WARNING (OR CAUTION) EMITS SHOWERS OR 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).

As discussed below, there are different types of multiple tube mine

and shell devices:

Large multiple tube mine and shell devices: These devices contain

multiple tubes of greater than one inch in inside diameter and fire

large aerial shells or comets producing visual and audible effects more

than 100 feet in the air. In domestically manufactured devices these

large multiple tubes may be individually labeled and configured

separately on a plastic or wooden base or they may be grouped together

on a wooden base with a single label surrounding them. The base upon

which the discharge tube is mounted can have a variety of different

dimensions and the tubes themselves can vary in number and size. The

effects also can vary. All of these devices have a single ignition fuse

that ignites a charge in each tube and sets off separate sequential

aerial displays. These devices are sometimes referred to as display

racks.

Imported large multiple tube mine and shell devices consist of

several tubes greater than one inch in inside diameter that are grouped

together with or without a wooden or plastic base. These tubes are

fused in series to fire large shells and/or comets which produce visual

and audible effects sequentially. Some of these devices have a single

label surrounding the grouped tubes, and all feature a single fuse for

ignition. These imported multiple tube mine and shells may be sold as

is to the consumer or may be used by domestic manufacturers as inserts

in other display devices. Manufacturers insert the entire imported

device inside a single cardboard tube with a manufacturer's label, and

attach the insert in the larger tube to a wooden or plastic base.

The large multiple tube mine and shell devices, whether or not they

contain a base, range in retail price from $30 to $130 each.

Small multiple tube mine and shell devices: These devices contain

multiple tubes of one inch or less in inside diameter. Some devices are

referred to as ``cakes'' and may contain as many as 100 small multiple

tubes in a single device. They are generally imported and may or may

not contain a horizontal base. The shells fired from these small

devices may explode, releasing effects at a height of 20 feet or

greater, and are ignited by a single fuse. These devices range in

retail price from $5 to $30 each.

Because the shots from small and large multiple tube mine and shell

devices fire sequentially and there is no dynamic stability

requirement, there is a danger that the force from one of the earlier

shots could upset the device and cause it to fall to a horizontal

position. One of the subsequent shots could discharge while the device

is in a horizontal position or as it is falling. As a result, there is

a risk that one of the projectiles could strike the operator or

spectators and cause serious injury. The severity of injury would

depend on both the part of the body the projectile strikes and the

kinetic energy of the projectile. Death could and has resulted from a

projectile striking someone's head.

The propensity of a multiple tube mine and shell device to tip-over

varies depending upon such factors as shell weights, energy produced by

the lift charge, the geometric design of the device, and the surface on

which the device is fired.

The Commission identified domestically manufactured large multiple

tube mine and shell devices secured to a base that have a high

likelihood of tip-over and, therefore, pose a high degree of risk.

These devices, which were recalled, fire 3 or more shots sequentially.

They consist of a wooden base upon which 3 or more vertical mortar

tubes are mounted. The displays are propelled one hundred feet or more

into the air. Different styles of these devices provide different

aerial displays but otherwise are substantially similar.

The Commission has also identified the tip-over-while-functioning

hazard in imported large multiple tube mine and shell devices

containing no base. Small and large multiple tube mine and shell

devices are manufactured domestically or imported and are distributed

to consumers nationwide. The retail markup price of these products from

wholesale is approximately 200 to 400 percent per unit.

D. Risk of Injury

As explained above, because these multiple tube mine and shell

devices fire sequentially they pose a hazard of tipping over while

firing. And, if the projectile were to strike the operator or a

spectator, serious injury could result. The Commission has noted two

deaths directly attributable to large multiple tube mine and shell

devices. The two deaths occurred during operation of similar devices.

In both incidents, the device tipped over while functioning and the

projectile from the device struck the victims, both spectators, in the

head. The victims were a 3 year-old boy and a 65 year-old woman. Based

on the Commission's testing and reports of two deaths involving tip-

over of similar devices, the Commission believes that the large

multiple tube mine and shell devices present a serious risk of injury.

In addition, the Commission has received information about two non-

fatal burn injuries received when multiple tube mine and shell devices

tipped over while functioning and the shots traveled horizontally and

struck the victims, both of whom were spectators. In one case, a three

year old victim received a burn injury when the small mine and shell

device travelled 40 feet and hit the victim in the lap. In the other

case, a thirty-one year old victim received second degree thermal burns

when fireworks device fired 8 to 10 shots before tipping over and the

last shot traveled horizontally 20 to 30 feet and hit the victim on the

leg.

The Commission estimates, that 150 burn injuries from tip-over from

multiple tube mine and shells were treated in hospital emergency rooms

nationwide in 1992. This estimate is based on a nationwide projection

of the two documented burn injuries from hospitals in the Commission's

National Electronic Injury Surveillance System (NEISS). The Neiss

system utilizes a national probability sample of injuries treated in

hospital emergency rooms to project injuries nationwide. The cases

identified do not represent the total number of incidents which may

have occurred.

The Commission has conducted limited tests on selected samples of

large and small multiple tube mine and shell devices. Both large and

small multiple tube mine and shell devices raise concerns because of

the instability they exhibited during testing. Under CPSC's testing,

some of these devices demonstrated a pattern of tip-overs. Some large

devices repeatedly tipped over while functioning when the Commission

laboratory staff tested the devices on 2-inch polyurethane foam, as

specified by an industry voluntary standard, as well as on a grass

covered surface.

Several devices were tested by the Commission's laboratory staff

using a dynamic stability test set forth in the American Fireworks

Standard Laboratory's Interim Voluntary Standard for Mines and Shells

(AFSL 20,21). Under the AFSL standard, all multiple tube devices with

inside tube diameter of greater than one inch, (e.g., the display rack

devices), must remain stable when shot on a 2-inch thick medium density

polyurethane foam pad. The purpose of the foam is to simulate grass or

other uneven surfaces.

The Commission's laboratory staff also reviewed testing data on the

occurrence of tip-over among small size multiple tube mine and shell

devices. The staff observed that some devices tipped over while

functioning. In 1992, 1.5 percent of all small mine and shell samples

that they tested exhibited tip-over-while-functioning on gravel. In

1993, the percentage of tip-over was 3.5 percent.

E. Regulatory Alternatives Considered

The Commission is considering several alternatives to reduce the

injuries and deaths caused by multiple tube mine and shell devices.

Alternatives currently under consideration include: (1) ban all

multiple tube mine and shell devices; (2) ban multiple tube mine and

shell devices with a inside tube diameter of greater than one inch; (3)

require additional labeling on all multiple tube mine and shell

devices; (4) establish performance or design criteria to modify the

multiple tube mine and shell devices (devices that do not meet the

criteria would be banned); (5) pursue individual product recalls; and

(6) take no mandatory action, but encourage the development of a

voluntary standard. Some combination of these alternatives is also

possible.

The Commission may also consider not issuing any new mandatory

requirement applicable to these devices. Under this alternative, the

only stability requirements for these devices would be the Commission's

mandatory base to height requirement and the AFSL voluntary standard.

As explained in greater detail in section F below, however, the

Commission believes that the level of conformance with this aspect of

the voluntary standard is not sufficiently high to adequately reduce

the risk of injury associated with these devices.

F. Existing Standards

Regulations promulgated under the FHSA concerning fireworks devices

apply to the multiple tube mine and shell devices at issue here. A

brief overview of these fireworks regulations is provided in section A

of this notice.

One of the requirements under these regulations is a base-to-height

ratio, which applies to devices operated in a standing upright

position. It requires that the minimum horizontal dimension or the

diameter of the base of such a device must be at least one-third of the

height of the device. 16 CFR Sec. 1507.4. This is a non-dynamic

stability test. That is, the purpose of the required ratio is to assure

that the device does not tip over. However, it is a static test and

does not measure the stability of a device while it is being fired. In

1976, when this requirement was issued, no device like the large

multiple tube mine and shell devices discussed in this notice was

available to the consumer. CPSC testing demonstrates that many multiple

tube mine and shell devices that comply with the Commission's base-to-

height ratio requirement are likely to tip over when used as intended.

AFSL is an industry-sponsored organization established to develop

voluntary standards for fireworks and to test fireworks devices. AFSL

has developed an interim voluntary standard for small and large

multiple tube mines and shells. One part of that standard is a dynamic

stability test that assesses the stability of multiple tube devices

while they are functioning. Under the voluntary standard, a device with

inside tube diameter of greater than one inch must remain stable while

functioning on 2-inch thick medium density polyurethane foam pad. The

voluntary standard also provides that a device with inside tube

diameter of one inch or less must remain stable while functioning on a

1-inch thick medium density polyurethane foam pad. According to the

AFSL standard, any instance of tip-over (unless it is the last shot)

during a test is a basis to reject all items of that specific design.

The AFSL standard also prescribes a label, which incorporates the

Commission's required labeling. This suggested label states:

WARNING SHOOTS FLAMING BALLS AND REPORTS

USE ONLY UNDER CLOSE ADULT SUPERVISION.

FOR OUTDOOR USE ONLY.

DO NOT HOLD IN HAND.

NEVER HAVE ANY PART OF YOUR BODY OVER THE DEVICE WHEN LIGHTING THE

FUSE.

LIGHT FUSE AND GET AWAY.

NEVER RELIGHT A FUSE WHICH FAILS TO IGNITE THE DEVICE. THIS ITEM

SHOULD BE PLACED UPRIGHT AND USED ONLY ON CONCRETE, ASPHALT, OR

OTHER HARD, LEVEL SURFACE.

THIS ITEM MAY TIP OVER IF USED ON GRASS OR OTHER UNEVEN SURFACE AND

SERIOUS INJURY COULD RESULT.

The AFSL standard also sets limits on the amount of allowable

propellant and pyrotechnic composition.

The Commission preliminarily concludes that this voluntary standard

may not adequately reduce the risk of injury because of a lack of

industry conformance and lack of correlation with typical surfaces on

which the devices might be fired. As explained above, the Commission's

testing of multiple tube mine and shell devices on foam surfaces,

utilizing the AFSL standard, indicated failures. Although CPSC has

tried to encourage conformance with the voluntary standard, the

Commission cannot enforce the standard if an importer or manufacturer

does not abide by it.

G. Solicitation of Information and Comments

This ANPR is the first step of a proceeding to regulate multiple

tube mine and shell fireworks devices. All interested persons are

invited to submit to the Commission their comments or on any issues or

information relevant to the regulatory alternatives discussed above.

Specifically, in accordance with section 3(f) of the FHSA, the

Commission solicits:

(1) Written comments with respect to the risk of injury identified

by the Commission, the regulatory alternatives being considered, and

other possible alternatives for addressing the risk.

(2) Any existing standard or portion of a standard which could be

issued as a proposed regulation.

(3) A statement of intention to modify or develop a voluntary

standard to address the risk of injury discussed in this notice, along

with a description of a plan to do so.

These comments may address issues including, but not limited to,

the feasibility of testing to determine a correlation between the

surfaces used and the functioning of these devices; economic

information concerning the marketing of large and small multiple tube

mine and shell devices and the cost of a performance test; and the

level of conformance to the AFSL voluntary standard, including the

percentage of the multiple tube mine and shell industry that conforms

to the AFSL interim voluntary standard. The Commission is also

concerned with the amount of force associated with the projectiles

fired from these devices. Therefore, in considering the development of

a standard, the Commission requests information relative to the

establishment of maximum kinetic energy or force limitations for the

projectiles of multiple tube mine and shell fireworks devices which

would prevent them from causing critical injury or death in the event

of an accident. All comments and submissions should be addressed to the

Office of the Secretary, Consumer Product Safety Commission,

Washington, D.C. 20207-0001, or delivered to the Office of the

Secretary, Consumer Product Safety Commission, Room 502, 4330 East-West

Highway, Bethesda, Maryland 20814, and received no later than August

30, 1994.

Dated: June 27, 1994.

Sadye E. Dunn,

Secretary, Consumer Product Safety Commission.

[FR Doc. 94-15987 Filed 6-30-94; 8:45 am]

BILLING CODE 6355-01-P