Final Rule: Fireworks Devices; Fuse Burn Time

CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1507

Final Rule: Fireworks Devices; Fuse Burn Time

AGENCY: Consumer Product Safety Commission.

ACTION: Final rule.

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SUMMARY: The Commission amends its regulation under the Federal

Hazardous Substances Act that specifies the allowable fuse burn times

of fireworks devices (except firecrackers). The amendment changes 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

improve safety by allowing manufacturers to more consistently produce

fireworks that do not have dangerously short fuse burn times of below 3

seconds. Further, the increase in the maximum allowable fuse burn time

to 9 seconds will not create any additional risk of injury to

consumers. The amendment originally was requested in a petition from

the American Fireworks Standards Laboratory.

DATES: Adversely affected persons have until January 21, 1997, to file

objections to this rule, stating grounds therefor and requesting a

public hearing on those objections.

If no material objections are received, the Commission will

promptly publish a Federal Register document announcing that fact and

affirming the issuance and the effective date of the amendment. The

amendment will go into effect on the date that the affirmation document

is published, but not earlier than January 22, 1997. If material

objections are received, the Commission will publish a document in the

Federal Register specifying whether the amendment has been stayed by

the filing of proper objections.

ADDRESSES: Objections and requests for hearings must be mailed to the

Office of

[[Page 67198]]

the Secretary, Consumer Product Safety Commission, Washington, D.C.

20207, or delivered to the Office of the Secretary, Room 502, 4330

East-West Highway, Bethesda, Maryland 20814 telephone (301) 504-6800.

FOR FURTHER INFORMATION CONTACT: Robert Poth, Division of Regulatory

Management, Office of Compliance, Consumer Product Safety Commission,

Washington, DC 20207; telephone (301)504-0400 ext. 1375.

SUPPLEMENTARY INFORMATION:

I. Background

In this notice, the Consumer Product Safety Commission (``the

Commission'' or ``CPSC'') amends its regulation under the Federal

Hazardous Substances Act (``FHSA'') that governs the allowable range of

times that fuses for fireworks (other than firecrackers 1) may

burn before the device ignites. 16 CFR 1507.3(a)(2). That regulation

currently requires fireworks devices 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

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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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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.

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 increase injuries to consumers who returned to live

fireworks assuming that 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. As discussed in the notice of proposed

rulemaking, 61 FR 41043 (August 7, 1996), the study found that

consumers would not likely return to a fireworks device within 9

seconds after lighting the fuse.

In September 1995, AFSL petitioned the CPSC (Petition HP 96-1) to

make the same modification to the FHSA fireworks fuse burn time

regulation as had been previously requested by 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-second 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 where fuses burn less than 3 seconds.

After considering the available information, the Commission

preliminarily concluded 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 found 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 concluded that the risk associated with

short fuse burn times is of greater 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.

Accordingly, the Commission voted to grant Petition HP 96-1, and

published a notice of proposed rulemaking on August 7, 1996. 61 FR

41043. That notice discusses in detail the reasons for the Commission's

action and various issues associated with the proposed amendment. The

Commission received 8 comments on the proposal, all of which favored

the amendment. The comments are discussed below in Section III of this

notice.

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. More specifically, 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

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.

The fireworks subject to this regulation, and that have fuse burn

times outside the 3 to 9-second range set forth in this amendment, are

already banned hazardous substances. Because the amendment will not

declare any additional products to be banned hazardous substances, an

advance notice of proposed rulemaking was not required for this

proceeding. See FHSA section 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.

The procedures established under section 701(e) of the Food, Drug,

and Cosmetic Act (``FDCA'') also govern this rulemaking. 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 30

days in which to file objections with the Commission stating the

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

21 U.S.C. 371(e). Here, this 30-day period expires January 21,1997. If

objections were filed, a hearing to receive evidence concerning the

objections would be held. The presiding officer would then issue an

order, based upon substantial evidence. Id. The Commission's procedural

rules at 16 CFR Part 1502 would apply to such a hearing.

Any objections and requests for a hearing must be filed with the

Commission's Office of the Secretary. They will be accepted for filing

if they meet the following conditions: (1) They are submitted within

the 30-day period specified; (2) each objection is separately numbered;

(3) each objection specifies with particularity the provision(s) of the

regulation to which the objection is directed; (4) each objection on

which a hearing is desired specifically requests a hearing; and (5)

each objection for which a hearing is requested includes a detailed

description of the basis for the objection and the factual information

or analysis

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in support thereof. 16 CFR 1502.6(a). (Failure to submit a description

and analysis for an objection constitutes a waiver of the right to a

hearing on that objection. Id. at 1502.6(a)(5).)

The Commission will publish a notice in the Federal Register

specifying any parts of the regulation that have been stayed by the

filing of proper objections or, if no objections have been filed,

stating that fact. Id. at Sec. 1502.7. As soon as practicable, the

Commission will review any objections and hearing requests that have

been filed to determine whether the regulation should be modified or

revoked, and whether a hearing is justified. Id. at Sec. 1502.8.

III. Comments on the Proposal

The Commission received 10 comments in response to the notice of

proposed rulemaking. All commenters supported raising the upper limit

of the fuse burn time regulation from 6 to 9 seconds. Other issues

raised by the comments are discussed below.

1. Comment: Ban of consumer fireworks. The National Fire Protection

Association (``NFPA'') urged the Commission to adopt NFPA's position,

stated in its Model Fireworks Law, that fireworks should not be used by

consumers but should be strictly limited to trained professionals who

operate in accordance with applicable codes. (Short of this preferred

solution, the NFPA supports the proposed change to the fuse burn time

regulation to help reduce injuries.) Similarly, although Prevent

Blindness America opposes the sale, distribution, and use of Class C

fireworks, that group supports the amendment because it will ``improve

public safety.''

Response: The only way that the Commission could directly

accomplish NFPA's preferred goal of keeping fireworks out of the hands

of consumers would be to ban all consumer fireworks. See 15 U.S.C.

1263. That alternative is beyond the scope of this proceeding.

2. Comment: Continuation of the current enforcement policy allowing

2 to 3-second fuse burn times. The AFSL pointed out that the

Commission's current enforcement policy allows a 2 to 3-second lower

limit of fuse burn time for some fireworks. The Commission has

indicated that, at some time after the regulation is amended, the 3-

second minimum for all subject fireworks would be strictly enforced.

However, the Commission also indicated that the current 2 to 3-second

policy would remain in effect for a time after the effective date of

the regulation so as to minimize any adverse economic effect on

manufacturers. The AFSL and some other industry members requested that

this enforcement policy be extended for 1 year after the effective date

of the regulation.

Response: The Commission agrees that strict enforcement of the 3-

second lower limit of fuse burn time for all fireworks, as soon as the

amended rule goes into effect, would pose some adverse economic impact

on the industry. Fireworks produced before then that have 2 to 3-second

fuse burn times, although complying with the Commission's enforcement

policy that was in effect when these fireworks were made, would be

banned. This would cause an unwarranted economic burden on the

industry.

CPSC staff discussion with an industry commenter indicated that the

July 4th season represents peak demand in the U.S. for fireworks and

that domestic and imported fireworks to meet that demand should be in

U.S. distribution channels by mid-May at the latest. It seems

reasonable to assume that all noncomplying current inventory is

intended for the 1997 July 4th season. Therefore June 30, 1997, is an

appropriate cut-off date for the enforcement policy allowing 2 to 3-

second fuse burn times for most fireworks. Accordingly, the Commission

will not bring enforcement actions against fireworks on the basis of

fuse burn times between 2 and 3 seconds for fireworks that are first

distributed in commerce in the United States--by being imported into

the U.S. or shipped from a U.S. manufacturer--by June 30, 1997.

The June 30, 1997, date for ending the enforcement policy allowing

the introduction into commerce of fireworks having fuse burn times of

between 2 and 3 seconds assumes that no objections will be received to

amending the fuse burn time to 3 to 9 seconds. However, as explained in

Section II of this notice, if objections are received, the effective

date of the amendment could be delayed considerably. To account for

this possibility, the Commission is extending this enforcement policy

until June 30, 1997, or until 6 months after the effective date of the

amendment allowing 3 to 9-second fuse burn times, whichever is later.

3. Comment: Interim policy allowing fuse burn times between 6 and 9

seconds. The notice of proposed rulemaking indicated that the earliest

possible effective date for the final rule would be 31 days after the

final rule was published in the Federal Register. The AFSL stated that,

if there are no objections to amending the regulation, the pending 3 to

9-second amendment should be implemented as an enforcement policy at

the close of the comment period. The AFSL commented that this would

allow the safety benefit to be immediately realized.

The AFSL also commented that immediately implementing the amended

upper fuse burn time limit would allow a significant amount of the

devices for the 1997 fireworks season to comply with the new

requirement. If the amendment were not allowed to be implemented until

after the rule became effective, AFSL stated, ``the positive impact

that the rule is expected to have on consumer safety is virtually lost

until the 1998 fireworks season.''

Response: The Commission believes it is in the public interest to

allow the manufacture of fireworks with a 9-second upper limit of fuse

burn time as soon as possible. Such a change should reduce injuries

caused by short fuse burn times. Accordingly, the Commission's staff

sent a letter, dated November 7, 1996, to the petitioner and other

major fireworks trade associations announcing an interim policy

allowing manufacturers to begin immediately producing fireworks to the

9-second upper limit of fuse burn time.

4. Comment: Consumer Survey. As part of a class assignment,

students from Florida International University conducted an informal

survey of 30 people, from 9 through 54 years of age, to determine

whether they thought banning fireworks was the best solution to the

problems caused by their use. The respondents preferred increasing the

fuse burn time as the best course of action to be pursued. The students

also suggested that, in the future, consideration be given to having

manufacturers enclose safety information with their products.

Response: The action taken by the Commission is consistent with

this comment, insofar as it relates to the scope of this proceeding.

IV. 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 simply provides a wider range of allowable

times. Thus, the Commission is making the amendment effective as soon

as practicable. Under 21 U.S.C. 371(e), 30 days is allowed after this

type of final rule is issued to receive any objections to the rule.

That section also provides that the final rule may not become effective

before the 30-day period for objections expires. As noted above, if no

objections are filed, the Commission must publish a Federal Register

notice stating that fact. Therefore, the

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amendment will become effective on the day the notice affirming the

final rule is published in the Federal Register. This approach will

allow interested persons to know with greater certainty that the

amendment had in fact taken effect, without having to determine whether

another party had filed objections.

As noted above, the Commission's staff currently has a policy of

not enforcing against fuse burn time violations as low as 2 seconds for

all subject fireworks except reloadable shell devices, bottle rockets,

and jumping jacks that exhibit erratic flight. The Commission intends

to continue the current policy with respect to fuse burn times of 2 to

3 seconds until at least June 30, 1997, in order to minimize any

adverse economic effects on the industry. Thus, subject to further

notice, no enforcement actions will be brought on the basis of fuse

burn times between 2 and 3 seconds against subject fireworks that are

imported or shipped from a U.S. manufacturer by June 30, 1997, or 6

months after the effective date of the amendment, whichever is longer.

Also, after notifying the Commission, the CPSC staff on November 7,

1996, established an interim policy of allowing fuse burn times between

6 and 9 seconds. Therefore, until the amendment to allow fuse burn

times of between 3 and 9 seconds becomes effective, the staff will not

bring enforcement actions based on fuse burn time violations in the 6

to 9-second range.

V. Final 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. 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.

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.

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 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.

Industry sources indicate that any necessary adjustments to the

manufacturing process will take approximately 1 week to accomplish once

notification is received. Since fireworks which comply with the current

3 to 6-second fuse burn time requirement will necessarily comply with

the new 3 to 9-second fuse burn time requirement and because the

existing enforcement policy will be continued for a sufficient period

of time--there will be no economic impact resulting from the choice of

effective date.

VI. 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 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

fuse burn times will increase from the range of 3 to 6 seconds to the

range of 3 to 9 seconds--and because the existing enforcement policy

will be continued for a sufficient period of time--the change will not

cause any increase in noncomplying fireworks, which would require

disposal. Therefore, no significant environmental effects are expected

from the amended rule. Accordingly, neither an environmental assessment

nor an environmental impact statement is required.

IX. Conclusion

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, of the Code of Federal Regulations is 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: December 16, 1996.

Sadye E. Dunn,

Secretary, Consumer Product Safety Commission.

[FR Doc. 96-32397 Filed 12-19-96; 8:45 am]

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