81 FR 61146 - 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

CONSUMER PRODUCT SAFETY COMMISSION

Federal Register Volume 81, Issue 172 (September 6, 2016)

Page Range		61146-61147
FR Document		2016-21014

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.

Federal Register, Volume 81 Issue 172 (Tuesday, September 6, 2016)

[Federal Register Volume 81, Number 172 (Tuesday, September 6, 2016)]
[Proposed Rules]
[Pages 61146-61147]
From the Federal Register Online  [www.thefederalregister.org]
[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

Federal Register / Vol. 81, No. 172 / Tuesday, September 6, 2016 / Proposed Rules 61147

standard with a highly reproducible Dated: August 26, 2016. you wish to make available publicly. If
measure. Todd A. Stevenson, you wish the Commission to consider
Aside from the clarity of its use as an Secretary, Consumer Product Safety information that may be exempt from
enforcement tool, the APA standard is Commission. disclosure under the Freedom of
[FR Doc. 2016–21014 Filed 9–2–16; 8:45 am] Information Act (FOIA), a petition for
also familiar to industry. Not only does
BILLING CODE 6355–01–P confidential treatment of the exempt
it reflect the work of a voluntary
information may be submitted according
standard development organization in to the procedures established in
which industry members participated, it Commission Regulation 145.9.1
has been incorporated by reference into COMMODITY FUTURES TRADING
The Commission reserves the right,
the Department of Transportation’s COMMISSION
but shall have no obligation, to review,
regulations for the shipment of 17 CFR Part 4 pre-screen, filter, redact, refuse, or
fireworks.8 Under this interpretation, remove any or all of a submission from
CPSC will be testing fireworks devices RIN 3038–AE47 www.cftc.gov that it may deem to be
in line with the APA standard when inappropriate for publication, such as
Commodity Pool Operator Annual obscene language. All submissions that
determining which devices are intended
Report have been redacted or removed that
to produce an audible effect.
AGENCY: Commodity Futures Trading contain comments on the merits of the
B. Interpretive Rule Commission. rulemaking will be retained in the
For the foregoing reasons, the ACTION: Notice of proposed rulemaking; public comment file and will be
extension of comment period. considered as required under the
Commission proposes to interpret the
Administrative Procedure Act and other
phrase ‘‘Fireworks devices intended to
SUMMARY: On August 5, 2016, the applicable laws, and may be accessible
produce audible effects’’ in a manner under the FOIA.
Commodity Futures Trading
consistent with the APA voluntary Commission (Commission or CFTC) FOR FURTHER INFORMATION CONTACT:
standard and DOT regulations. Under published in the Federal Register a Christopher W. Cummings, Special
this interpretation, the Commission will notice of proposed rulemaking Counsel, 202–418–5445, ccummings@
consider the presence in the burst (or (Proposal) to amend certain of its cftc.gov or Barbara S. Gold, Associate
break) charge of a fireworks device of regulations applicable to the Annual Director, 202–418–5441, bgold@cftc.gov,
metallic powder less than 100 mesh in Report that each person registered or Division of Swap Dealer and
particle size to mean that the device is required to be registered as a commodity Intermediary Oversight, Commodity
intended to produce an audible effect. pool operator (CPO) must distribute for Futures Trading Commission, Three
Likewise, if the device lacks such each commodity pool that it operates. Lafayette Centre, 1155 21st Street NW.,
metallic powder, staff will consider it as As is explained below, the Commission Washington, DC 20581.
not intended to produce an audible is extending for two weeks the comment SUPPLEMENTARY INFORMATION: The
effect. This change, as noted above, will period for the Proposal. Proposal concerns certain provisions of
not alter the rule or any party’s DATES: The comment period for the the Annual Report that registered CPOs
obligations under it in any way, but it Proposal published on August 5, 2016, are required to distribute and submit
will allow the Commission to enforce at 81 FR 51828, is extended until under Regulation 4.22. Among other
that rule more efficiently. September 20, 2016. things, it would amend these
ADDRESSES: You may submit comments, provisions: To permit the use of
C. Request for Comment additional alternative generally
identified by RIN 3038–AE47 and
‘‘Commodity Pool Operator Annual accepted accounting principles,
The Commission requests comments
Report,’’ by any of the following standards or practices; to provide for an
on all aspects of the proposed
methods: exemption from the Annual Report
interpretation. In particular, given the audit requirement where the first fiscal
handmade nature of these products, the • CFTC Web site: http://
comments.cftc.gov. Follow the year of a pool consists of a period of
Commission requests comments on three months or less from the date of
whether there should be an allowance instructions for submitting comments
through the Comments Online process formation of the pool; and to clarify that
for contamination at a level that would a CPO must distribute and submit an
not pose an injury hazard to fireworks on the Web site.
• Mail: Send to Christopher audited Annual Report at least once
users or bystanders. We seek comments during the life of the pool. The comment
Kirkpatrick, Secretary of the
to determine whether we can exercise period for the Proposal is due to expire
Commission, Commodity Futures
some flexibility in enforcement. We Trading Commission, Three Lafayette on September 6, 2016.
would not be setting an enforceable Centre, 1155 21st Street NW., By letter dated August 26, 2016, the
contamination allowance but, in an Washington, DC 20581. Managed Funds Association (MFA), a
enforcement proceeding, we may • Hand Delivery/Courier: Same as membership organization representing
consider allowing some contamination Mail, above. many persons who would be affected by
if we receive information supporting the • Federal eRulemaking Portal: http:// the Proposal, requested a two-week
position that inadvertent low level www.regulations.gov. Follow the extension of the comment period for the
sradovich on DSK3GMQ082PROD with PROPOSALS

contamination by these metals can instructions for submitting comments. Proposal, such that, as extended, the
occur in the manufacturing process. comment period would expire on
Please submit your comments using September 20, 2016. In support of its
If so, please provide the CPSC only one of these methods. request, MFA explained that it is
information and data regarding what an All comments must be submitted in drafting comments in response to the
appropriate allowance should be. English, or if not, accompanied by an
English translation. Comments will be 1 17 CFR 145.9 (2016). The Commission’s
posted as received to www.cftc.gov. You regulations are found at 17 CFR Ch. I (2016). They
8 49 CFR 173.65. should submit only information that are accessible through the Commission’s Web site.

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Document Created: 2018-02-09 12:04:14
Document Modified: 2018-02-09 12:04:14

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Proposed interpretive rule.
Dates		Submit comments by October 6, 2016.
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]
FR Citation		81 FR 61146