[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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).
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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
---------------------------------------------------------------------------
\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\
---------------------------------------------------------------------------
\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\
---------------------------------------------------------------------------
\5\ Fireworks Devices, 35 FR 7415 (May 13, 1970).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\7\ Id.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\8\ 49 CFR 173.65.
---------------------------------------------------------------------------
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