[Federal Register: July 1, 1994]


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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1500


Multiple Tube Mine and Shell Fireworks Devices: 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: Based on currently available information, the Commission has
reason to believe that an unreasonable risk of injury may be associated
with multiple tube mine and shell fireworks devices. Requirements
currently enforced by the Commission may not adequately address the
risk of serious injury posed by these fireworks devices. The Commission
is issuing this advance notice of proposed rulemaking (``ANPR'') under
the Federal Hazardous Substances Act to initiate the process of
amending its fireworks regulations for all multiple tube mine and shell
fireworks devices. This action applies to all multiple tube mine and
shell devices which fire sequentially into the air.
    The ANPR addresses the issue of how to reduce the risk of injury
associated with multiple tube mine and shell devices. One possible
outcome of the proceeding would be to amend existing requirements for
fireworks devices to ban all multiple tube mine and shell devices, or
to ban specific multiple tube mine and shell devices found to present
an unreasonable risk of injury. Alternatively, the Commission is also
considering whether to amend the fireworks regulations to reduce the
risk of injury by (1) requiring additional labeling on these particular
devices, or (2) setting design or performance criteria for these
devices (by banning devices not in compliance). A final alternative is
for the Commission to refrain from issuing a mandatory requirement and
encourage the development of a voluntary standard.
    The Commission solicits written comments from interested persons
concerning the risk of injury and the regulatory alternatives discussed
in this notice, as well as other possible methods to reduce or
eliminate these risks.

DATES: Written comments in response to this notice must be received by
the Commission no later than August 30, 1994.

ADDRESSES: Comments should be mailed, preferably in five (5) copies, to
the Office of the Secretary, Consumer Product Safety Commission,
Washington, D.C. 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: Linda Smith, Project Officer,
Directorate for Epidemiology, Consumer Product Safety Commission,
Washington, DC 20207; telephone (301) 504-0470.

SUPPLEMENTARY INFORMATION:

A. Background

    Multiple tube mine and shell fireworks devices are a non-reloadable
type of multiple shot device designed to fire aerial shells and/or
comets and produce visual or audible effects in the air. Mines are
fireworks devices intended to produce a low altitude aerial effect.
Shells are aerial devices designed to be propelled into the air where a
small explosive charge breaks the shell and creates a display of stars,
reports, and other effects. Mines and shells may have different
propellant limits but are generally combined into a single unit and in
most cases it is difficult to distinguish between a mine and a shell.
    The products referenced in this proceeding generally contain both
mines and shells and will be referred to as multiple tube mine and
shell devices. These devices are manufactured domestically and are also
imported.
    Multiple tube mine and shell devices are comprised of several
vertical tubes with a common fuse, either with or without a horizontal
base. Because these devices are designed to fire shots sequentially,
there is a danger that after the first shot or few shots the device may
become unstable and tip over. The other shots then may fire
horizontally or at an angle and may hit the operator or spectators. The
Commission is aware of two deaths and two burn injuries to spectators
involving multiple tube mine and shell devices in this scenario.
Because of the severe nature of injuries involved, the Commission is
taking action to initiate this rulemaking proceeding.
    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 3 to 6 seconds, resist side
ignition, and remain securely attached to the device; a base-to-height
ratio requirement for base stability; a requirement to prevent blowout
of the tube; and a limit on audible ``reports'' to 2 grains of powder.
Id. at Part 1507. Finally, additional Commission regulations prescribe
specific warnings required on various legal fireworks devices, Id. at
1500.14(b)(7), and designate the size and location of these warnings.
Id. at 1500.121.
    Large multiple tube mine and shells, also called display racks or
multiple tube aerial display devices, were first produced by domestic
manufacturers around 1986. In July 1991 the first of two known deaths
to a spectator, a 3 year old boy, resulted from the tip-over of a large
multiple tube mine and shell device. The Commission staff investigated
the incident and determined that the device involved in the incident
presented a substantial product hazard under the Consumer Product
Safety Act (15 U.S.C. 2064(b)) because it posed a risk of serious
injury or death. Commission testing of this multiple tube mine and
shell device indicated that it complied with Commission regulations
regarding base to height ratios (sometimes referred to as static
stability), but that it tipped over when functioning, posing a hazard
to users. The manufacturer of the device then issued a recall of the
11,900 units distributed to retail stores and fireworks stands
nationwide.
    The Commission informed the fireworks industry, including the
American Pyrotechnics Association (APA) and the American Fireworks
Standards Laboratory (AFSL), of the potential for death and serious
injury that large multiple tube mine and shell devices presented. In
October 1991, several domestic manufacturers of multiple tube mine and
shell devices began developing a performance test (sometimes referred
to as a dynamic stability test) to test the tip-over-while-functioning
hazard of large multiple tube mine and shells. This test utilized a two
inch thick block of medium density (2 pounds per cubic foot)
polyurethane upholstery foam to simulate the function of the device
when used on grassy or other uneven surfaces. AFSL also began work to
revise its voluntary standard for these devices to address the dynamic
stability problems they presented. AFSL issued an interim revised
voluntary standard for mines and shells in January 1993.
    In addition, the Commission collected samples of large multiple
tube mine and shell devices manufactured domestically, and tested the
devices in accordance with FHSA requirements. The Commission also
tested the devices for the tip-over-while-functioning hazard using the
industry dynamic stability test. While the devices complied with FHSA
requirements, dynamic stability testing on a foam surface revealed
product tip overs while functioning. Therefore, the Commission staff
preliminarily determined that the products presented substantial
product hazards under the CPSA. As a result, in June and July 1992 four
different domestic manufacturers of large multiple tube mine and shell
devices recalled six different devices totaling approximately 16,600
units.
    In July 1992 the Commission became aware of a death to a 65 year
old woman from injuries received when a large multiple tube mine and
shell device with a base tipped over while functioning. The device
fired an aerial shell horizontally, striking the victim in the left
temple and eye. The Commission determined that the description of the
device was similar to the multiple tube mine and shell device involved
in a similar death in July 1991.
    The Commission continued to investigate this safety problem. In
June 1993, another domestic manufacturer of three different large
multiple tube mine and shell devices initiated a recall of
approximately 150,000 units after the Commission staff preliminarily
determined that the devices presented a substantial hazard because they
tipped over when tested on foam.
    The Commission also learned that large multiple tube mine and shell
devices without bases were being manufactured and imported from China.
The Commission collected samples of these devices and tested them for
compliance with FHSA requirements and using the dynamic stability foam
test described earlier. The Commission determined that while the
devices complied with FHSA requirements, they tipped over while
functioning on a foam surface, posing a substantial product hazard
which could result in serious injury or death. In June 1993, in
response to the Commission tests, three different importers recalled
six different multiple tube mine and shell devices without bases,
totaling 20,450 units. The Commission also informed APA and AFSL of the
recalls, and they informed their members. As a result, several
additional importers ceased distribution of thousands of incoming
units.
    Under the Commission's existing regulations, multiple tube mine and
shell devices that comply with applicable FHSA requirements are not
banned hazardous substances. However, the Commission staff has
information from which it could be concluded that these devices may
pose an unreasonable risk of injury. As noted above, devices that
complied with the base stability requirement did tip over while
functioning. Thus, the existing regulations do not adequately address
dynamic stability or stability-while-functioning-hazards posed by these
devices. No other changes to the existing fireworks regulations are
within the scope of this ANPR.

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--they are flammable or
combustible substances, or they generate pressure through
decomposition, heat, or other means, and they ``may cause substantial
personal injury * * * 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 of protecting the
public. 15 U.S.C. 1261(q)(1)(B). A proceeding to promulgate a
regulation classifying a substance as a banned hazardous substance
under section 2(q)(1) of the FHSA is governed by the requirements in
sections 3(f)-(i) of the FHSA, and by the provisions of section 701(e)
of the Federal Food, Drug, and Cosmetic Act (``FDCA''), 21 U.S.C.
371(e); See also section 2(q)(2) of the FHSA, 15 U.S.C. 1261(q)(2).
    The process to classify a product as a banned hazardous substance
is initiated by publication of an advance notice of proposed rulemaking
(``ANPR'') as provided in section 3(f) of the FHSA. 15 U.S.C. 1262(f).
The Commission must review and consider comments received in response
to the ANPR including any voluntary standards submitted in response to
its invitation. If the Commission then decides to continue the
rulemaking proceeding, it must publish the text of the proposed rule
along with a preliminary regulatory analysis that includes a
preliminary description of potential costs and benefits of the proposal
and reasonable alternatives to the proposed regulation. 15 U.S.C.
1262(g) & (h).
    After reviewing any comments on the proposed rule, the Commission
would then decide whether to issue a final rule. If the Commission
decided to proceed, it would publish the text of the final rule and a
final regulatory analysis that includes a description of potential
costs and benefits, a description of alternatives considered, and a
summary of significant issues raised by comments submitted in response
to the proposal. 15 U.S.C. 1262(i)(1). In addition, in order to issue a
final regulation, the Commission must make findings concerning
voluntary standards, the relationship of the costs and benefits of the
rule and the burden imposed by regulation. 15 U.S.C. 1262(i)(2).
    If the Commission ultimately decided 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 (called a final order), interested persons 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. If no objections are filed, the order becomes effective on
the last day for objections. The filing of objections stays the
implementation of those provisions to which objections are directed.
After the hearing, the presiding officer would issue an order, based
upon substantial evidence. 21 U.S.C. 371(e); 16 CFR Part 1502.
C. The Product
    Multiple tube mine and shell fireworks are Department of
Transportation (``DOT'') 1.4G explosive devices (formerly Class C
common fireworks devices) available to consumers that may be used at or
near households. Commission regulations require that multiple tube mine
and shell devices bear the following conspicuous label:

WARNING (OR CAUTION) EMITS SHOWERS OR 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).
    As discussed below, there are different types of multiple tube mine
and shell devices:
    Large multiple tube mine and shell devices: These devices contain
multiple tubes of greater than one inch in inside diameter and fire
large aerial shells or comets producing visual and audible effects more
than 100 feet in the air. In domestically manufactured devices these
large multiple tubes may be individually labeled and configured
separately on a plastic or wooden base or they may be grouped together
on a wooden base with a single label surrounding them. The base upon
which the discharge tube is mounted can have a variety of different
dimensions and the tubes themselves can vary in number and size. The
effects also can vary. All of these devices have a single ignition fuse
that ignites a charge in each tube and sets off separate sequential
aerial displays. These devices are sometimes referred to as display
racks.
    Imported large multiple tube mine and shell devices consist of
several tubes greater than one inch in inside diameter that are grouped
together with or without a wooden or plastic base. These tubes are
fused in series to fire large shells and/or comets which produce visual
and audible effects sequentially. Some of these devices have a single
label surrounding the grouped tubes, and all feature a single fuse for
ignition. These imported multiple tube mine and shells may be sold as
is to the consumer or may be used by domestic manufacturers as inserts
in other display devices. Manufacturers insert the entire imported
device inside a single cardboard tube with a manufacturer's label, and
attach the insert in the larger tube to a wooden or plastic base.
     The large multiple tube mine and shell devices, whether or not they
contain a base, range in retail price from $30 to $130 each.
    Small multiple tube mine and shell devices: These devices contain
multiple tubes of one inch or less in inside diameter. Some devices are
referred to as ``cakes'' and may contain as many as 100 small multiple
tubes in a single device. They are generally imported and may or may
not contain a horizontal base. The shells fired from these small
devices may explode, releasing effects at a height of 20 feet or
greater, and are ignited by a single fuse. These devices range in
retail price from $5 to $30 each.
    Because the shots from small and large multiple tube mine and shell
devices fire sequentially and there is no dynamic stability
requirement, there is a danger that the force from one of the earlier
shots could upset the device and cause it to fall to a horizontal
position. One of the subsequent shots could discharge while the device
is in a horizontal position or as it is falling. As a result, there is
a risk that one of the projectiles could strike the operator or
spectators and cause serious injury. The severity of injury would
depend on both the part of the body the projectile strikes and the
kinetic energy of the projectile. Death could and has resulted from a
projectile striking someone's head.
    The propensity of a multiple tube mine and shell device to tip-over
varies depending upon such factors as shell weights, energy produced by
the lift charge, the geometric design of the device, and the surface on
which the device is fired.
    The Commission identified domestically manufactured large multiple
tube mine and shell devices secured to a base that have a high
likelihood of tip-over and, therefore, pose a high degree of risk.
These devices, which were recalled, fire 3 or more shots sequentially.
They consist of a wooden base upon which 3 or more vertical mortar
tubes are mounted. The displays are propelled one hundred feet or more
into the air. Different styles of these devices provide different
aerial displays but otherwise are substantially similar.
    The Commission has also identified the tip-over-while-functioning
hazard in imported large multiple tube mine and shell devices
containing no base. Small and large multiple tube mine and shell
devices are manufactured domestically or imported and are distributed
to consumers nationwide. The retail markup price of these products from
wholesale is approximately 200 to 400 percent per unit.

D. Risk of Injury

    As explained above, because these multiple tube mine and shell
devices fire sequentially they pose a hazard of tipping over while
firing. And, if the projectile were to strike the operator or a
spectator, serious injury could result. The Commission has noted two
deaths directly attributable to large multiple tube mine and shell
devices. The two deaths occurred during operation of similar devices.
In both incidents, the device tipped over while functioning and the
projectile from the device struck the victims, both spectators, in the
head. The victims were a 3 year-old boy and a 65 year-old woman. Based
on the Commission's testing and reports of two deaths involving tip-
over of similar devices, the Commission believes that the large
multiple tube mine and shell devices present a serious risk of injury.
    In addition, the Commission has received information about two non-
fatal burn injuries received when multiple tube mine and shell devices
tipped over while functioning and the shots traveled horizontally and
struck the victims, both of whom were spectators. In one case, a three
year old victim received a burn injury when the small mine and shell
device travelled 40 feet and hit the victim in the lap. In the other
case, a thirty-one year old victim received second degree thermal burns
when fireworks device fired 8 to 10 shots before tipping over and the
last shot traveled horizontally 20 to 30 feet and hit the victim on the
leg.
    The Commission estimates, that 150 burn injuries from tip-over from
multiple tube mine and shells were treated in hospital emergency rooms
nationwide in 1992. This estimate is based on a nationwide projection
of the two documented burn injuries from hospitals in the Commission's
National Electronic Injury Surveillance System (NEISS). The Neiss
system utilizes a national probability sample of injuries treated in
hospital emergency rooms to project injuries nationwide. The cases
identified do not represent the total number of incidents which may
have occurred.
    The Commission has conducted limited tests on selected samples of
large and small multiple tube mine and shell devices. Both large and
small multiple tube mine and shell devices raise concerns because of
the instability they exhibited during testing. Under CPSC's testing,
some of these devices demonstrated a pattern of tip-overs. Some large
devices repeatedly tipped over while functioning when the Commission
laboratory staff tested the devices on 2-inch polyurethane foam, as
specified by an industry voluntary standard, as well as on a grass
covered surface.
    Several devices were tested by the Commission's laboratory staff
using a dynamic stability test set forth in the American Fireworks
Standard Laboratory's Interim Voluntary Standard for Mines and Shells
(AFSL 20,21). Under the AFSL standard, all multiple tube devices with
inside tube diameter of greater than one inch, (e.g., the display rack
devices), must remain stable when shot on a 2-inch thick medium density
polyurethane foam pad. The purpose of the foam is to simulate grass or
other uneven surfaces.
    The Commission's laboratory staff also reviewed testing data on the
occurrence of tip-over among small size multiple tube mine and shell
devices. The staff observed that some devices tipped over while
functioning. In 1992, 1.5 percent of all small mine and shell samples
that they tested exhibited tip-over-while-functioning on gravel. In
1993, the percentage of tip-over was 3.5 percent.

E. Regulatory Alternatives Considered

    The Commission is considering several alternatives to reduce the
injuries and deaths caused by multiple tube mine and shell devices.
Alternatives currently under consideration include: (1) ban all
multiple tube mine and shell devices; (2) ban multiple tube mine and
shell devices with a inside tube diameter of greater than one inch; (3)
require additional labeling on all multiple tube mine and shell
devices; (4) establish performance or design criteria to modify the
multiple tube mine and shell devices (devices that do not meet the
criteria would be banned); (5) pursue individual product recalls; and
(6) take no mandatory action, but encourage the development of a
voluntary standard. Some combination of these alternatives is also
possible.
    The Commission may also consider not issuing any new mandatory
requirement applicable to these devices. Under this alternative, the
only stability requirements for these devices would be the Commission's
mandatory base to height requirement and the AFSL voluntary standard.
As explained in greater detail in section F below, however, the
Commission believes that the level of conformance with this aspect of
the voluntary standard is not sufficiently high to adequately reduce
the risk of injury associated with these devices.

F. Existing Standards

    Regulations promulgated under the FHSA concerning fireworks devices
apply to the multiple tube mine and shell devices at issue here. A
brief overview of these fireworks regulations is provided in section A
of this notice.
    One of the requirements under these regulations is a base-to-height
ratio, which applies to devices operated in a standing upright
position. It requires that the minimum horizontal dimension or the
diameter of the base of such a device must be at least one-third of the
height of the device. 16 CFR Sec. 1507.4. This is a non-dynamic
stability test. That is, the purpose of the required ratio is to assure
that the device does not tip over. However, it is a static test and
does not measure the stability of a device while it is being fired. In
1976, when this requirement was issued, no device like the large
multiple tube mine and shell devices discussed in this notice was
available to the consumer. CPSC testing demonstrates that many multiple
tube mine and shell devices that comply with the Commission's base-to-
height ratio requirement are likely to tip over when used as intended.
    AFSL is an industry-sponsored organization established to develop
voluntary standards for fireworks and to test fireworks devices. AFSL
has developed an interim voluntary standard for small and large
multiple tube mines and shells. One part of that standard is a dynamic
stability test that assesses the stability of multiple tube devices
while they are functioning. Under the voluntary standard, a device with
inside tube diameter of greater than one inch must remain stable while
functioning on 2-inch thick medium density polyurethane foam pad. The
voluntary standard also provides that a device with inside tube
diameter of one inch or less must remain stable while functioning on a
1-inch thick medium density polyurethane foam pad. According to the
AFSL standard, any instance of tip-over (unless it is the last shot)
during a test is a basis to reject all items of that specific design.
    The AFSL standard also prescribes a label, which incorporates the
Commission's required labeling. This suggested label states:

WARNING SHOOTS FLAMING BALLS AND REPORTS
USE ONLY UNDER CLOSE ADULT SUPERVISION.
FOR OUTDOOR USE ONLY.
DO NOT HOLD IN HAND.
NEVER HAVE ANY PART OF YOUR BODY OVER THE DEVICE WHEN LIGHTING THE
FUSE.
LIGHT FUSE AND GET AWAY.
NEVER RELIGHT A FUSE WHICH FAILS TO IGNITE THE DEVICE. THIS ITEM
SHOULD BE PLACED UPRIGHT AND USED ONLY ON CONCRETE, ASPHALT, OR
OTHER HARD, LEVEL SURFACE.
THIS ITEM MAY TIP OVER IF USED ON GRASS OR OTHER UNEVEN SURFACE AND
SERIOUS INJURY COULD RESULT.

The AFSL standard also sets limits on the amount of allowable
propellant and pyrotechnic composition.
    The Commission preliminarily concludes that this voluntary standard
may not adequately reduce the risk of injury because of a lack of
industry conformance and lack of correlation with typical surfaces on
which the devices might be fired. As explained above, the Commission's
testing of multiple tube mine and shell devices on foam surfaces,
utilizing the AFSL standard, indicated failures. Although CPSC has
tried to encourage conformance with the voluntary standard, the
Commission cannot enforce the standard if an importer or manufacturer
does not abide by it.

G. Solicitation of Information and Comments

    This ANPR is the first step of a proceeding to regulate multiple
tube mine and shell fireworks devices. All interested persons are
invited to submit to the Commission their comments or on any issues or
information relevant to the regulatory alternatives discussed above.
Specifically, 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, the regulatory alternatives being considered, and
other possible alternatives for addressing the risk.
    (2) Any existing standard or portion of a standard which could be
issued as a proposed regulation.
    (3) 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 to do so.
    These comments may address issues including, but not limited to,
the feasibility of testing to determine a correlation between the
surfaces used and the functioning of these devices; economic
information concerning the marketing of large and small multiple tube
mine and shell devices and the cost of a performance test; and the
level of conformance to the AFSL voluntary standard, including the
percentage of the multiple tube mine and shell industry that conforms
to the AFSL interim voluntary standard. The Commission is also
concerned with the amount of force associated with the projectiles
fired from these devices. Therefore, in considering the development of
a standard, the Commission requests information relative to the
establishment of maximum kinetic energy or force limitations for the
projectiles of multiple tube mine and shell fireworks devices which
would prevent them from causing critical injury or death in the event
of an accident. All comments and submissions should be addressed to the
Office of the Secretary, Consumer Product Safety Commission,
Washington, D.C. 20207-0001, or delivered to the Office of the
Secretary, Consumer Product Safety Commission, Room 502, 4330 East-West
Highway, Bethesda, Maryland 20814, and received no later than August
30, 1994.

    Dated: June 27, 1994.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 94-15987 Filed 6-30-94; 8:45 am]
BILLING CODE 6355-01-P