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From Products Liability Law Daily, September 6, 2016

CPSC proposes statement of policy regarding interpretation of fireworks regulation

By Colleen Kave, J.D.

A Proposed Statement of Policy regarding the Consumer Product Safety Commission’s interpretation of the phrase "intended to produce audible effects" that appears in the Federal Hazardous Substances Act (FHSA), CPSC’s fireworks regulations, has been approved by the agency. 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. Comments on the proposed interpretive rule must be received by October 6, 2016 (CPSC Notice of Proposed Interpretive Rule, 81 FR 61146, September 6, 2016).

The FHSA empowers CPSC to, "by regulation[,] declare to be a hazardous substance…any substance or mixture of substances" 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 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. 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."

The Commission’s rules do not further define or describe "devices intended to produce audible effects," nor do they define how CPSC will determine whether a product falls under this category. The Consumer Fireworks Testing 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 this 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. 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." This provides a bright-line standard with a highly reproducible measure. This APA standard is also familiar to industry and has been incorporated by reference into the Department of Transportation’s regulations for the shipment of fireworks. 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.

For the foregoing reasons, CPSC has proposed 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 of metallic powder less than 100 mesh in particle size in the burst (or break) charge of a fireworks device 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 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.

CPSC 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.

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