[Federal Register Volume 71, Number 133 (Wednesday, July 12, 2006)]
[Proposed Rules]
[Pages 39249-39251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-10881]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Parts 1500 and 1507
Amendment to Fireworks Safety Standards; Advance Notice of
Proposed Rulemaking; Request for Comments and Information
AGENCY: Consumer Product Safety Commission.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: The Commission is considering whether there may be a need to
update and strengthen its regulation of fireworks devices. This advance
notice of proposed rulemaking (``ANPR'') initiates a rulemaking
proceeding under the Federal Hazardous Substances Act (``FHSA''). The
Commission is soliciting written comments concerning the risks of
injury associated with fireworks that do not comply with the current
fireworks device regulations, the regulatory options discussed in this
notice, other possible ways to address these risks, and the economic
impacts of the various regulatory alternatives. The Commission also
invites interested persons to submit an existing standard, or a
statement of intent to modify or develop a voluntary standard, to
address the risk of injury described in this notice.\1\
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\1\ Commissioner Thomas H. Moore filed a statement which is
available from the Office of the Secretary or on the Commission's
Web site at http://www.cpsc.gov.
DATES: Written comments and submissions in response to this notice must
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be received by September 11, 2006.
ADDRESSES: Comments should be e-mailed to [email protected]. Comments
should be captioned ``FIREWORKS ANPR.'' Comments may also be mailed,
preferably in five copies, to the Office of the Secretary, Consumer
Product Safety Commission, Room 502, 4330 East-West Highway, Bethesda,
Maryland 20814, or delivered to the same address (telephone (301) 504-
0800). Comments also may be filed by facsimile to (301)504-0127.
FOR FURTHER INFORMATION CONTACT: Barbara E. Parisi, Office of General
Counsel, Consumer Product Safety Commission, 4330 East-West Highway,
Bethesda, Maryland 20814; telephone (301) 504-7879 or e-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
A. Background
On May 14, 1973, the Consumer Product Safety Commission, pursuant
to section 30(a) of the Consumer Product Safety Act (CPSA) (15 U.S.C.
2079(a)), assumed responsibility for and administration of the FHSA. On
September 27, 1973 (38 FR 27012), the Commission transferred existing
fireworks regulations under the FHSA from 21 CFR parts 191 and 191d to
16 CFR parts 1500 and 1507.
In addition to these mandatory CPSC regulations, the American
Fireworks Standards Laboratory (AFSL) has developed voluntary standards
pertaining to fireworks. The AFSL standards incorporate both CPSC and
Department of Transportation regulations as well as a number of
standards developed by AFSL that are in addition to Federal
requirements. AFSL is an independent, non-profit corporation that was
established in 1989 by members of the fireworks industry. It is
administered by a 12-member Board of Directors representing companies
that manufacture or import fireworks into the United States. Currently,
AFSL has approximately 140 U.S. importer members in its program. AFSL
tests fireworks in China for its members prior to exportation to the
United States. Other testing organizations offer similar services in
China, generally following the AFSL standards or close variation.
B. The Product
A firecracker is a device consisting of an explosive pyrotechnic
composition in a fused container with the primary function of producing
an audible effect. The term ``fireworks devices'' includes firecrackers
and other devices using a pyrotechnic composition which when ignited
produce visual and sometimes audible effects. Fireworks devices include
consumer fireworks, which are regulated by the CPSC, and professional/
display fireworks, which fall under the jurisdiction of the Bureau of
Alcohol, Tobacco, Firearms and Explosives. Consumer fireworks generally
fall into the following twelve device classifications: (1) Combination
items; (2) Comets, Mines and Shells; (3) Firecrackers; (4) Fountains;
(5) Ground Spinners and Chasers; (6) Specialty Items; (7) Party, Trick
and Toy Smoke
[[Page 39250]]
Devices; (8) Reloadable Tube Aerial Shells; (9) Roman Candles; (10)Sky
Rockets, Missiles, and Helicopters; (11) Hand-held Sparkling Devices;
and (12) Wheels.
According to a June 27th 2005 press release from the U.S. Census
Bureau, the value of fireworks imported from China into the United
States in 2004 was $164.2 million. This represented the bulk of all
U.S. firework imports ($172.5 million). By comparison, U.S. exports of
fireworks came to just $14.3 million.
The CPSC staff regularly samples fireworks imports and tests these
samples to determine compliance with the regulations set forth in 16
CFR Part 1507. While the overall percentage rate of compliance of
tested fireworks remained relatively steady in the years 2002 through
2004 (71%, 73%, and 72%), the compliance rate dropped to just 59% of
the fireworks tested in 2005. Fireworks that had been certified to the
AFSL voluntary standard enjoyed a significantly higher percentage of
compliance with CPSC standards, i.e., 83% compliance in 2005.
C. The Risk of Injury
In the past few years, there has been an increase in the estimated
number of injuries due to fireworks devices. In the Commission's 2005
Fireworks Annual Report, fireworks devices were involved in an
estimated 10,800 injuries requiring treatment in U.S. hospital
emergency departments, as compared to 9,600 in 2004, 9,300 in 2003, and
8,000 in 2002. According to that report, the Commission had reports of
four deaths associated with fireworks during 2005. During 2004, the
Commission received reports of eight deaths associated with fireworks.
During a one month special study between June 18, 2005 and July 18,
2005, an estimated 6,500 fireworks related injuries were treated in
U.S. hospital emergency departments \2\ (compared with 6,600 injuries
in the 2004 special study and 6,800 injuries during the 2003 special
study period).
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\2\ 95 percent confidence interval 4,900--8,100.
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The results of the one-month special study conducted in 2005 by
CPSC staff showed that: injuries to children were a major component of
total fireworks-related injuries with children under 15 accounting for
45 percent of the estimated injuries; children and young adults under
20 had 55 percent of the estimated injuries; there were an estimated
100 injuries at public fireworks displays; the parts of the body most
often injured were hands (estimated 2,000 injuries), eyes (1,600
injuries) and the head, face and ear (1,300 injuries); and more than
half of the injuries involved burns. Burns were the most common injury
to all parts of the body except the eyes, where contusions,
lacerations, and foreign bodies in the eye occurred more frequently.
D. Relevant Statutory Provisions
This advance notice of proposed rulemaking initiates a rulemaking
proceeding under the FHSA. Section 3 of the FHSA specifies the
procedure the Commission follows to issue a mandatory consumer product
safety standard. The Commission commences the rulemaking by issuing an
ANPR, which must identify the product and the risk of injury, summarize
regulatory alternatives, and invite comments or suggested standards
from the public. 15 U.S.C. 1262(f). After considering any comments
submitted in response to the ANPR, the Commission will decide whether
to issue a proposed rule and a preliminary regulatory analysis in
accordance with section 3(h) of the FHSA.
If a proposed rule is issued, the Commission would then consider
the comments received in response to the proposed rule in deciding
whether to issue a final rule and a final regulatory analysis. 15
U.S.C. 1262(i).
Additionally, Section 10 of the FHSA provides the Commission with
authority to ``promulgate regulations for the efficient enforcement of
[the FHSA].'' One option the Commission has under this provision is to
issue a rule requiring mandatory certification to the fireworks device
regulations of the FHSA.
E. Existing Standards
The Commission regulates fireworks devices under the Federal
Hazardous Substances Act (``FHSA''). 15 U.S.C. 1261-1278. Under its
current regulations, the Commission has declared certain fireworks
devices to be ``banned hazardous substances.'' 16 CFR Parts
1500.17(a)(3), (8), (9), (11) and (12). Other fireworks devices must
meet specific requirements to avoid being classified as banned
hazardous substances. 16 CFR Part 1507. Commission regulations also
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.
The American Fireworks Standards Laboratory (AFSL) developed
performance and labeling standards for twelve categories of consumer
fireworks devices. These twelve categories are: (1) Combination items;
(2) comets, mines, and shells; (3) firecrackers; (4) fountains; (5)
ground spinners and chasers; (6) specialty items; (7) party, trick, and
toy smoke devices; (8) reloadable tube aerial shells; (9) roman
candles; (10) sky rockets, missiles, and helicopters; (11) hand-held
sparkling devices; and (12) wheels. According to AFSL, the standards
were developed by a Standards Committee representing various segments
of the fireworks industry, Federal and state regulatory authorities,
consumers, and technical experts. The AFSL standards incorporate both
CPSC and Department of Transportation mandatory regulations as well as
a number of standards developed by AFSL that are in addition to Federal
requirements.
The Department of Transportation incorporates by reference the
American Pyrotechnics Association Standard 87-1 (``Standard'') as part
of its regulations. The Standard applies to fireworks devices,
pyrotechnic articles, and novelties for entertainment purposes, and is
designed to enable manufacturers, importers and distributors of
fireworks and novelties to provide their customers with products that
can be transported and used safely and without unreasonable risk.
F. Regulatory and Non-Regulatory Alternatives To Address the Risks of
Injury
One or more of the following alternatives could be used to reduce
the identified risks associated with fireworks devices.
1. Mandatory Certification. The Commission could issue a rule
requiring mandatory certification to the fireworks device regulations
of the FHSA. This would encourage manufacturers to conduct testing or
make use of independent testing laboratories as a basis for
certification.
2. Mandatory Standard. The Commission could issue a rule specifying
certain additional requirements fireworks devices must meet. The
Commission is required to invite any person to submit to the Commission
an existing standard or a portion of a standard as a proposed
regulation under section 2(q)(1) or section 3(e) of the Federal
Hazardous Substances Act. (15 U.S.C. 1262(f)(5)). If the Commission
determines that any standard submitted to it in response to this
invitation if promulgated (in whole, in part, or in combination with
any other standard submitted to the Commission) as a regulation under
the FHSA would eliminate or adequately reduce the risk of injury, the
Commission may publish the standard, in whole, in part, or in such
combination and with nonmaterial
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modifications, as a proposed regulation. (15 U.S.C. 1262(g)(1)).
3. Reliance on Voluntary Standard. The Commission is required to
consider voluntary standards in its mandatory rulemaking. Specifically,
the Commission is required to invite any person to submit to the
Commission a statement of intention to modify or develop a voluntary
standard to address a risk of injury together with a description of a
plan to modify or develop the standard. (15 U.S.C. 1262(f)(6)). If the
Commission determines that compliance with a standard submitted to it
in response to this invitation is likely to result in the elimination
or adequate reduction of the risk of injury identified in the notice,
and it is likely that there will be substantial compliance with such
standard, then the Commission must terminate the proceeding to
promulgate a regulation and publish a notice in the Federal Register
which includes the determination of the Commission and notifies the
public that the Commission will rely on the voluntary standard to
eliminate or reduce the risk of injury. Before relying upon any
voluntary standard, the Commission must afford interested parties a
reasonable opportunity to submit written comments regarding such
standard. The Commission must consider such comments in making any
determination regarding reliance on the involved voluntary standard.
4. Corrective Actions Under Section 15 of the FHSA. The Commission
has authority under section 15 of the FHSA, 15 U.S.C. 1274, to pursue
corrective actions on a case-by-case basis if the Commission determines
that a product constitutes a banned hazardous substance.
G. Request for Information and Comments
In accordance with section 3(f) of the FHSA, the Commission
solicits:
1. Written comments with respect to the risk of injury identified
by the Commission.
2. Written comments regarding the regulatory alternatives being
considered and other possible alternatives for addressing the risk.
3. Any existing standard or portion of a standard which could be
issued as a proposed regulation.
4. A statement of intention to modify or develop a voluntary
standard to address the risk of injury discussed in this notice, along
with a description of a plan (including a schedule) to do so.
In addition, the Commission is interested in receiving information
about the testing that is conducted on fireworks before they are
distributed, the costs associated with testing, and the impact that
testing has on both compliance with the CPSC mandatory fireworks device
regulations and on injuries.
Comments should be e-mailed to [email protected]. and should be
captioned ``FIREWORKS ANPR.'' Comments may also be mailed, preferably
in five copies, to the Office of the Secretary, Consumer Product Safety
Commission, Room 502, 4330 East-West Highway, Bethesda, MD 20814, or
delivered to the same address (telephone (301) 504-0800). Comments also
may be filed by telefacsimile to (301) 504-0127. All comments and
submissions should be received no later than September 11, 2006.
Dated: July 5, 2006.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. E6-10881 Filed 7-11-06; 8:45 am]
BILLING CODE 6355-01-P