Multiple Tube Mine and Shell Fireworks Devices

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, PaDevice 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, PaDevice 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

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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.

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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.

---------------------------------------------------------------------------

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