[Federal Register Volume 61, Number 246 (Friday, December 20, 1996)]
[Rules and Regulations]
[Pages 67197-67200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32397]


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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

[[Page 67199]]

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]
BILLING CODE 6355-01--P