[Federal Register Volume 60, Number 128 (Wednesday, July 5, 1995)]
[Proposed Rules]
[Pages 34922-34934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16313]



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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  
----------------------------------------------------------------------------------------------------------------
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%          
----------------------------------------------------------------------------------------------------------------
*Significantly different from grass, P<0.05.                                                                    
aDevice 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                            
------------------------------------------------------------------------
                       Device                           Grass     Foam  
------------------------------------------------------------------------
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%      
------------------------------------------------------------------------
*Significantly different from grass, P<0.05.                            
aDevice 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                         
------------------------------------------------------------------------
                                              Tipover rate on           
                                                   grass                
        Minimum tip angle (degrees)        ---------------------  Device
                                             Percent  Incidence         
------------------------------------------------------------------------
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 
------------------------------------------------------------------------
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)
---------------------------------------------------------------------------

    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                
------------------------------------------------------------------------
                             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.    
------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

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