[Federal Register Volume 81, Number 172 (Tuesday, September 6, 2016)]
[Proposed Rules]
[Pages 61146-61147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-21014]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1500

[Docket No. CPSC-2016-0020]


Statement of Policy on the Commission's Interpretation of Intent 
To Produce Audible Effects Within the Meaning of the Commission's 
Fireworks Regulations Under the Federal Hazardous Substances Act

AGENCY: U.S. Consumer Product Safety Commission.

ACTION: Proposed interpretive rule.

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SUMMARY: The Consumer Product Safety Commission (CPSC) has approved a 
Proposed Statement of Policy regarding the Commission's interpretation 
of the phrase ``intended to produce audible effects'' that appears in 
the Commission's fireworks regulations.

DATES: Submit comments by October 6, 2016.

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2016-
0020 by any of the following methods:
    Electronic Submissions: Submit electronic comments to the Federal 
eRulemaking Portal at: http://www.regulations.gov. Follow the 
instructions for submitting comments. The Commission does not accept 
comments submitted by electronic mail (email), except through 
regulations.gov. The Commission encourages you to submit electronic 
comments by using the Federal eRulemaking Portal, as described above.
    Written Submissions: Submit written comments by mail/hand delivery/
courier to: Office of the Secretary, Consumer Product Safety 
Commission, Room 820, 4330 East-West Highway, Bethesda, MD 20814; 
telephone (301) 504-7923.
    Instructions: All submissions received must include the agency name 
and docket number. All comments received may be posted without change, 
including any personal identifiers, contact information, or other 
personal information provided, to: http://www.regulations.gov. Do not 
submit confidential business information, trade secret information, or 
other sensitive or protected information that you do not want to be 
available to the public. If furnished at all, such information should 
be submitted in writing by mail/hand delivery/courier.

FOR FURTHER INFORMATION CONTACT: DeWane Ray, Deputy Executive Director 
for Safety Operations, U.S. Consumer Product Safety Commission, 4330 
East West Highway, Bethesda, MD 20814; telephone: (301)-504-7547; 
email: [email protected].

SUPPLEMENTARY INFORMATION: Under the Federal Hazardous Substances Act 
(FHSA),\1\ the Consumer Product Safety Commission (CPSC or Commission) 
has banned all ``[f]ireworks devices intended to produce audible 
effects . . . if the audible effect is produced by a charge of more 
than 2 grains of pyrotechnic composition.'' \2\ Pursuant to staff's 
Consumer Fireworks Testing Manual (Manual), Commission staff determine 
whether a fireworks device was intended to produce an audible effect by 
evaluating the relative intensity of the sound produced by such device 
(the Sound Test).
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    \1\ Pub. L. 86-613, 74 Stat. 372 (July 12, 1960) (codified as 
amended at 15 U.S.C. 1261-78).
    \2\ 16 CFR 1500.17(a)(3).
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    Through this publication, the Commission proposes to interpret the 
``audible effects'' provision such that staff will consider the 
presence of metallic powder less than 100 mesh in particle size within 
the burst (or break) charge of a fireworks device to mean the device is 
intended to produce an audible effect, consistent with the American 
Pyrotechnic Association Standard 87-1 definition.
    The Commission notes that this interpretation is not a binding rule 
and would not change any person's rights, duties, or obligations under 
the FHSA or any other Act administered by the Commission. The 
Commission invites comment on this proposed interpretation.

A. Background

    The FHSA empowers the Consumer Product Safety Commission (CPSC or 
Commission) to, ``by regulation[,] declare to be a hazardous substance 
. . . any substance or mixture of substances'' \3\ which the Commission 
finds meets a series of statutory requirements. Under the FHSA, the 
Commission prohibits, as banned hazardous substances, the introduction 
into interstate commerce of all
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    \3\ 15 U.S.C. 1262(a)(1).

Fireworks devices intended to produce audible effects (including but 
not limited to cherry bombs, M-80 salutes, silver salutes, and other 
large firecrackers, aerial bombs, and other fireworks designed to 
produce audible effects, and including kits and components intended 
to produce such fireworks) if the audible effect is produced by a 
charge of more than 2 grains of pyrotechnic composition.\4\
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    \4\ 16 CFR 1500.17(a)(3). This rule provides an exception for 
devices intended and sold for bona fide agricultural use. Id. at 
Sec.  1500.17(a)(3)(i)-(ii).

    The goal of this ban was to remove from consumer use the kinds of 
devices that had, as noted in the 1970 Food and Drug Administration 
(FDA) rulemaking that imposed the ban, ``caused eight fatalities (six 
were teenage or younger) and a large number of serious injuries ranging 
from puncture wounds to broken bones and shattered hands.'' \5\
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    \5\ Fireworks Devices, 35 FR 7415 (May 13, 1970).
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    The Commission's rules do not further define or describe ``devices 
intended to produce audible effects,'' nor do they define how the 
Commission will determine whether a product falls under this category. 
The Manual directs Commission staff to evaluate the relative intensity 
of any sound produced by a firework device to determine whether such 
sound is an intended effect or merely incidental to the operation of 
the device. Any device in the former category must comply with the two 
grain limitation stated in the regulation.
    Since the adoption of the Sound Test, there have been many 
developments in the fireworks market, including the use of fine-mesh 
metallic fuels to intensify device operation. Voluntary standards 
bodies, including the APA, have addressed the use of metallic fuels 
directly.\6\
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    \6\ Amer. Pyrotechnics Assoc., APA Standard 87-1: Standard for 
Construction and Approval for Transportation of Fireworks, 
Novelties, and Theatrical Pyrotechnics Sec.  2.5 (2001).
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    Under the APA standard, ``any burst [or break] charge containing 
metallic powder (such as magnalium or aluminum) less than 100 mesh in 
particle size, is considered to be intended to produce an audible 
effect, and is limited to 130 mg [the equivalent of two grains] in 
[consumer] fireworks.'' \7\ This provides a bright-line

[[Page 61147]]

standard with a highly reproducible measure.
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    \7\ Id.
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    Aside from the clarity of its use as an enforcement tool, the APA 
standard is also familiar to industry. Not only does it reflect the 
work of a voluntary standard development organization in which industry 
members participated, it has been incorporated by reference into the 
Department of Transportation's regulations for the shipment of 
fireworks.\8\ Under this interpretation, CPSC will be testing fireworks 
devices in line with the APA standard when determining which devices 
are intended to produce an audible effect.
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    \8\ 49 CFR 173.65.
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B. Interpretive Rule

    For the foregoing reasons, the Commission proposes to interpret the 
phrase ``Fireworks devices intended to produce audible effects'' in a 
manner consistent with the APA voluntary standard and DOT regulations. 
Under this interpretation, the Commission will consider the presence in 
the burst (or break) charge of a fireworks device of metallic powder 
less than 100 mesh in particle size to mean that the device is intended 
to produce an audible effect. Likewise, if the device lacks such 
metallic powder, staff will consider it as not intended to produce an 
audible effect. This change, as noted above, will not alter the rule or 
any party's obligations under it in any way, but it will allow the 
Commission to enforce that rule more efficiently.

C. Request for Comment

    The Commission requests comments on all aspects of the proposed 
interpretation. In particular, given the handmade nature of these 
products, the Commission requests comments on whether there should be 
an allowance for contamination at a level that would not pose an injury 
hazard to fireworks users or bystanders. We seek comments to determine 
whether we can exercise some flexibility in enforcement. We would not 
be setting an enforceable contamination allowance but, in an 
enforcement proceeding, we may consider allowing some contamination if 
we receive information supporting the position that inadvertent low 
level contamination by these metals can occur in the manufacturing 
process.
    If so, please provide the CPSC information and data regarding what 
an appropriate allowance should be.

    Dated: August 26, 2016.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2016-21014 Filed 9-2-16; 8:45 am]
 BILLING CODE 6355-01-P