Proposed Rule: Fireworks Devices; Fuse Burn Time

CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1507

Proposed Rule: Fireworks Devices; Fuse Burn Time

AGENCY: Consumer Product Safety Commission.

ACTION: Proposed rule.

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SUMMARY: The Commission proposes to amend its regulation under the

Federal Hazardous Substances Act that applies to the fuse burn times of

fireworks devices. The proposal would change the allowable fuse burn

times from the presently required range of 3 to 6 seconds to the range

of 3 to 9 seconds. Increasing the range will allow manufacturers to

more consistently produce fireworks that do not fall below a 3-second

burn time, thus reducing hazardous short burn times. Further, the

increase in fuse burn time to 9 seconds will not create any additional

risk of injury to consumers. Therefore, the amendment should increase

the safety of users of fireworks. The amendment was requested in a

petition from the American Fireworks Standards Laboratory.

DATES: Comments on the proposal should be submitted no later than

October 21, 1996.

ADDRESSES: Comments to the Commission on the proposed rule should be

mailed to the Office of the Secretary, Consumer Product Safety

Commission, Washington, DC 20207, or delivered to the Office of the

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

Highway, Bethesda, Maryland 20814-4408, telephone (301) 504-0800.

Comments also may be filed with the Commission by facsimile to (301)

504-0127, or by electronic mail via [email protected]. Comments should

include a caption or cover indicating that they are directed to the

Office of the Secretary and are comments on the proposed revisions to

the fuse burn time of fireworks.

Comments on potential changes to the Commission staff's current

enforcement policy for fuse burn times, and on possible interim

forbearance of enforcement against fuse burn times of up to 9 seconds,

should be mailed to David Schmeltzer, Assistant Executive Director for

Compliance, Consumer Product Safety Commission, Washington, DC 20207.

FOR FURTHER INFORMATION CONTACT: Carolyn Meiers, Directorate for

Engineering Sciences, Consumer Product Safety Commission, Washington,

DC 20207; telephone (301) 504-0468 ext. 1281; or e-mail to cpsc/

g=Carolyn/i=K./s=Meiers/[email protected]

SUPPLEMENTARY INFORMATION:

I. Introduction and Background

Introduction. In this notice, the Consumer Product Safety

Commission (``the Commission'' or ``CPSC'') proposes to amend its

regulation under the Federal Hazardous Substances Act (``FHSA'') that

governs the allowable range of times that fuses for fireworks may burn

before the device ignites. 16 CFR 1507.3(a)(2). The Commission seeks

comments from interested members of the public on the proposed

amendment. The Commission also invites comments from counterpart

agencies in foreign governments, foreign standards developers, and

others who might be interested in this proposed amendment. This

invitation is in addition to the routine international notification of

this proposed rule that is provided by the World Trade Organization

Agreement on Technical Barriers to Trade.

Background. Commission regulations under the FHSA require fireworks

devices (other than firecrackers) 1 to have a fuse which will burn

at least 3 seconds but not more than 6 seconds before the device

ignites. 16 CFR 1507.3(a)(2).2 In 1991, the American Pyrotechnics

Association (``APA''), a trade association representing the fireworks

industry, submitted a petition to the Commission to modify the fuse

burn time regulation. APA requested that the upper limit of the

allowable fuse burn time be raised to 9 seconds.

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\1\ 16 CFR 1507.1.

\2\ As a matter of enforcement policy, the Commission's staff

has not brought legal actions against fuse burn time violations as

low as 2 seconds and as high as 8 seconds for all fireworks except

reloadable shell devices, bottle rockets, and jumping jacks which

exhibit erratic flight.

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The 1991 petition was denied because at that time there were

insufficient human factors data to demonstrate that a person would not

return to a fireworks device within the requested 9-second allowable

fuse burn time. The Commission was concerned that a longer fuse burn

time might result in an increase of injuries to consumers who returned

to live fireworks assuming they were ``duds.''

After the APA's petition was denied, the American Fireworks

Standards Laboratory (``AFSL''), an industry-supported fireworks

standards and certification organization, contracted with the American

Institutes of Research (``AIR'') to conduct human factors research of

fireworks-related behavior. The objective of the study was to determine

if consumers would return to a fireworks device within 9 seconds after

lighting the fuse.

In September 1995, the CPSC was petitioned by AFSL (Petition HP 96-

1) to make the same modification to the regulation under the FHSA that

governs fireworks fuse burn time as did the previous petition from

APA--that the upper limit of the allowable range of fuse burn times be

changed from 6 to 9 seconds.

Manufacturers currently target a 4.5 second average fuse burn time,

which is the midpoint of the currently allowed 3 to 6 seconds range. By

raising the upper limit of the fuse burn time from 6 to 9 seconds, AFSL

contends that manufacturers could target a more ideal average fuse burn

time of 6 seconds. AFSL claims this would enhance consumer safety by

eliminating incidents of fuses burning less than 3 seconds.

AFSL states that increasing the upper range of the fuse burn time

to 9 seconds also will increase compliance with the 3 second

requirement because: (1) It will improve fuse design and quality, (2)

it will make fuse burn time performance more consistent, and (3) it

will allow for the variability in fuse burn time caused by

environmental conditions. Any such improvement in compliance with the

3-second fuse burn time requirement would likely increase safety.

After considering the available information, the Commission voted

to grant Petition HP 96-1. The available information and the reasons

for the Commission's decision are explained below.

II. Statutory Procedure

This proceeding is conducted under the FHSA. 15 U.S.C. 1261-1278.

Fireworks are ``hazardous substances'' within the meaning of section

2(f)(1)(A) of the FHSA because they are flammable or combustible

substances, or generate pressure through decomposition, heat, or other

means, and ``may cause substantial personal injury or substantial

illness during or as a proximate result of any customary or reasonably

foreseeable handling or use * * *.'' 15 U.S.C. 1261(f)(1)(A).

Under section 2(q)(1)(B) of the FHSA, the Commission may classify

as a ``banned hazardous substance'' any

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hazardous substance intended for household use which, notwithstanding

the precautionary labeling that is or may be required by the FHSA,

presents such a hazard that keeping the substance out of interstate

commerce is the only adequate way to protect the public health and

safety. Id. at 1261(q)(1)(B). The current fuse burn time requirement

was issued under that section.

A proceeding to amend a rule issued under section 2(q)(1)(B) of the

FHSA is subject to the provisions of section 701(e) of the Federal

Food, Drug, and Cosmetic Act (``section 701(e)''), 21 U.S.C. 371(e). 15

U.S.C. 1261(2)(q)(2). Under section 701(e), if the petition of an

interested person shows ``reasonable grounds'' for the action

requested, the Commission is required to begin a rulemaking. The

fireworks types that would be subject to the proposed amendment, and

that have fuse burn times outside the proposed 3 to 9 second range, are

already banned hazardous substances. Because the amendment proposed

below will not declare any additional products to be banned hazardous

substances, an advance notice of proposed rulemaking is not required

for this proceeding. See FHSA Sec. 3(f), 15 U.S.C. 1262(f). For the

same reason, the procedures required by sections 3(g)-(i) of the FHSA

do not apply to this proceeding.

Under section 701(e) of the FDCA, once the Commission issues a

final rule in this type of proceeding, persons who would be adversely

affected by the rule may file objections with the Commission, stating

the grounds therefor, and request a public hearing on those objections.

21 U.S.C. 371(e). If material objections were filed, an adjudicatory

hearing to receive evidence concerning the objections would be held

before an administrative law judge (``ALJ''). After the ALJ's decision,

further appeals could be made to the Commission and ultimately to the

courts. 21 U.S.C. 371(e)-(f).

III. Injury Data

The CPSC conducted a special study of firework injuries from June

23 through July 23, 1995. The Special Study focused on this time period

because of the highly seasonal nature of fireworks injuries. The injury

cases in the special study were identified through the National

Electronic Injury Surveillance System (``NEISS''), CPSC's database of

cases from a sample of hospital emergency rooms.

Only six sample cases potentially relevant to fuse burn times were

identified. The reports of these injuries do not provide quantitative

measures of fuse burn times. Characterizations of whether the time

interval before a device ignites is long or short depend upon the

victims' or onlookers' subjective perceptions. It could not be

determined how the respondents' perceptions related to the CPSC's fuse

burn time standard.

Because of the small number of sample cases and the subjectiveness

of the respondents' perceptions of time, a national estimate of the

injuries associated with long or short fuse burn times cannot be

projected.

IV. Safety Effects of Raising the Upper Burn Time Limit to 9

Seconds

As described in greater detail below, the number of occurrences of

short fuse burn times--those below 3 seconds--would likely decline

appreciably if the proposed fuse burn time range of 3 to 9 seconds is

adopted. This clearly would have a positive effect on the safety of the

users of the fireworks subject to the fuse burn time regulation.

In the past, the Commission had been concerned that a 9-second fuse

burn time could cause consumers to mistakenly believe that a fireworks

device was a dud. More specifically, the concern was that a longer fuse

burn time could increase the risk of injury if consumers returned to

the firework before it ignited. To address this concern, AFSL

contracted with AIR to conduct a human factors study to determine how

long fireworks users take to begin to return to a firework that has not

gone off.

This AIR study appears to present the only data currently available

that relate user approach behavior to the fuse burn time of firework

devices. The study found that only one of the 30 participants began to

approach the device within 9 seconds. The remainder of the participants

began to approach the devices from 9 seconds to 5 minutes after

igniting the fuse. The median approach time for participants in the

last of four trials was 19 seconds. The study concluded that an

estimated 95% of the participants would not begin to approach the

unexploded firework until after 9 seconds.

In the AFSL study, no participant actually reached the location of

the firework device within 9 seconds. The only participant who began to

approach the fireworks device before 9 seconds began the approach at 8

seconds. However, he did not actually reach the firework until

approximately 35 seconds after lighting the fuse. The 19-second median

approach time is approximately twice as long as the proposed 9-second

upper limit. These data indicate that consumers are not likely to

return to a fireworks device within 9 seconds of fuse ignition. The

study also indicated that consumers are likely to use smoke and noise

cues emitted by a fireworks device as a guide to when a device can be

safely approached.

Based on this study, the Commission's Human Factors staff does not

expect an increase in injuries associated with increasing the maximum

fuse burning time to 9 seconds. The Commission preliminarily concludes

that increasing the range of fuse burn times from 3 to 6 seconds to 3

to 9 seconds will reduce injuries caused by fireworks with short fuse

burn times and will not create any additional hazard associated with

long fuse burn times.

V. Compliance with the Current Regulation

The Commission's Office of Compliance, Division of Regulatory

Management, conducts an ongoing fireworks surveillance program to

identify fireworks that do not comply with the Commission's

regulations. Results of this program for fiscal years 1990 through 1995

show that fuse burn time violations exceeded any other type of

fireworks violation. For this time period, between 40 and 50 percent of

all fireworks violations were attributed to fuse burn time.

Surveillance data may not represent all firework devices, because

devices tested for compliance to regulations are not randomly selected.

In addition, the number of violations leading to legal action has been

affected from year to year by variations in the staff's enforcement

policies.

As part of the CPSC's fireworks compliance testing program, the

Commission's Directorate for Laboratory Sciences recorded more than

26,700 individual fuse burn times from tests during the period FY 1990

through FY 1995. These fuse burn times excluded firecrackers, since

they are not covered by this regulation, and Roman candles, since they

are subject to a different enforcement policy.

Comparisons of fuse burn times measured over these years suggest an

overall improvement in fuse performance. Short fuse burn times (less

than 3 seconds) decreased from about 13 percent of the fireworks tested

to 8 percent. Long fuse burn times (greater than 6 seconds) decreased

from about 10 percent of the fireworks tested to about 5 percent. Based

on these test data, the staff estimates that the compliance rate for

fuses could reach about 98 percent if the proposed changes to the fuse

burn

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time regulation are enacted.3 Short fuse burn times violations

could drop to less than 1 percent, while fuse burn times greater than 9

seconds could be expected to be about 1 percent.

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\3\ These calculations assume that no changes would be made to

fuse design or quality (except for a longer fuse) and that

manufacturers would target a fuse burn time of 6 seconds.

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VI. Effective Date

Increasing the allowable fuse burn times from the range of 3 to 6

seconds to a range of 3 to 9 seconds will not have any adverse effects

on manufacturers, since it will simply provide a wider range of

allowable times. Thus, the Commission would like to make the amendment

effective as soon as possible. Under 21 U.S.C. 371(e), 30 days is

allowed after the final rule is issued to receive any objections to the

rule. This section also provides that the final rule may not become

effective before the 30-day period for objections expires. Therefore,

the Commission proposes to make the amendment effective 31 days after

the final rule is published in the Federal Register.

If the Commission votes to issue the proposed amendment as a final

rule, the Commission's staff intends to change its policy of not

enforcing against fuse burn time violations as low as 2 seconds that

now applies to all fireworks except reloadable shell devices, bottle

rockets, and jumping jacks which exhibit erratic flight. After the

change in policy, the staff would strictly enforce the 3-second fuse

burn time for all fireworks, since there will no longer be any valid

reason why industry cannot comply with the 3-second lower burn time.

The current policy will continue with respect to fuse burn times of 2

to 3 seconds, however, for a time after the effective date that is

sufficient to minimize any adverse economic effects on manufacturers.

Comments on how long the enforcement policy allowing 2-3 second fuse

burn times should continue after the effective date should be sent to

David Schmeltzer, Assistant Executive Director for Compliance, Consumer

Product Safety Commission, Washington, DC 20207.

In addition, the Commission's staff is considering an interim

policy of allowing fuse burn times between 6 and 9 seconds. This

interim policy could be instituted after the end of the comment period

on this proposal and before the rule is effective. Since increasing the

allowable upper limit of fuse burn time to 9 seconds is expected to

increase consumer safety, this interim relief appears to be in the

public interest. Persons wishing to comment on the staff's plans to

provide this interim relief should send their comments to David

Schmeltzer, Assistant Executive Director for Compliance, Consumer

Product Safety Commission, Washington, DC 20207.

VII. Initial Regulatory Flexibility Analysis

When an agency undertakes a rulemaking proceeding, the Regulatory

Flexibility Act, 5 U.S.C. 601 et seq., generally requires the agency to

prepare initial and final regulatory flexibility analyses describing

the impact of the rule on small businesses and other small entities.

The purpose of the Regulatory Flexibility Act, as stated in section

2(b) (5 U.S.C. 602 note), is to require agencies, consistent with their

objectives, to fit the requirements of regulations to the scale of the

businesses, organizations, and governmental jurisdictions subject to

the regulations.4

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\4\ The Regulatory Flexibility Act provides that an agency is

not required to prepare a regulatory flexibility analysis if the

head of an agency certifies that the rule will not have a

significant economic impact on a substantial number of small

entities. 5 U.S.C. 605.

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Based on information from the U.S. Department of Commerce and

industry sources, the estimated value of imported shipments of consumer

fireworks is about $70 to $100 million annually. Practically all of the

imports are from China.

Most U.S. firms that import, distribute, or manufacture fireworks

for consumer use are small, and the proposed rule is not expected to

result in any adverse impact. This is because the change to a longer

fuse, which should increase production costs by only about one percent,

will generate savings as a result of fewer rejections of fireworks due

to fuse burn time violations. Based on information from a trade

association and CPSC's Office of Compliance, an estimated 40 to 50

percent of the rejections of fireworks as a result of private and CPSC

testing are due to fuse burn time violations. The savings from the

reduced violations, according to a representative of an industry trade

association, could reach approximately $20 million annually. This may

result in lower prices to the consumer.

Any necessary adjustments to the manufacturing process will take

approximately 1 week to accomplish once notification is received,

according to the industry. Since fireworks which comply with the

current 3 to 6 second fuse burn time requirement would automatically

comply with the proposed 3 to 9 second fuse burn time requirement (and

because the existing enforcement policy will be continued for a

reasonable period of time), there will be no economic impact resulting

from the proposed 31-day effective date.

VIII. Environmental Impact

Pursuant to the National Environmental Policy Act, and in

accordance with the Council on Environmental Quality regulations and

CPSC procedures for environmental review, the Commission has assessed

the possible environmental effects associated with the proposed

amendment to the fuse burn times of fireworks.

The Commission's regulations at 16 CFR 1021.5(c)(1) and (2) state

that safety standards for consumer products normally have little or no

potential for affecting the human environment. Since the acceptable

range of fuse burn times will increase from 3-6 seconds to 3-9 seconds,

the change will not cause any increase in noncomplying fireworks, which

would require disposal. Therefore, no significant environmental effects

are expected from the proposed rule if it is adopted. Accordingly,

neither an environmental assessment nor an environmental impact

statement is required.

IX. Conclusions

For the reasons given above, the Commission preliminarily concludes

that raising the upper limit of the fuse burn time range from 6 seconds

to 9 seconds will reduce injuries caused by short fuse burn times.

Further, the Commission believes that raising the upper limit of the

fuse burn time range by 3 seconds will not cause additional injuries

from long fuse burn times.

In addition, the Commission believes that the risk associated with

short fuse burn times is of more concern than any risk associated with

long fuse burn times. With a long fuse burn time, consumers have some

cues (absence of smoke and noise) to guide them as to when to approach

a device; they have time to make decisions before they react. However,

consumers have no cues to alert them that a fireworks device may have a

short fuse burn time. The consequences of short fuse burn times can be

immediate. Consumers may have no time to retreat to a safe distance or

to take safety precautions.

List of Subjects in 16 CFR Part 1507

Consumer protection, Explosives, Fireworks.

For the reasons set out in the preamble, title 16, chapter II, part

1507,

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of the Code of Federal Regulations is proposed to be amended as

follows.

PART 1507--FIREWORKS DEVICES

1. The authority citation for part 1507 is revised to read as

follows:

Authority: 15 U.S.C. 1261-1262, 2079(d); 21 U.S.C. 371(e).

Sec. 1507.3 [Amended]

2. In section 1507.3(a)(2), remove the words ``6 seconds'' and add,

in their place, the words ``9 seconds''.

Dated: August 2, 1996.

Sadye E. Dunn,

Secretary, Consumer Product Safety Commission.

[FR Doc. 96-20150 Filed 8-6-96; 8:45 am]

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