I want to thank the staff for all of their efforts on this package. I would also like to commend my colleagues, Commissioner Mohorovic and Commissioner Robinson, for their leadership on this subject. Both of them have focused on specific fireworks issues and contributed significantly to the proposal before us today.
I have decided to abstain from voting on this notice of proposed rulemaking because I believe we should honor the temporary regulatory “freeze” ordered by the new Administration, even if it does not apply to us as a strictly legal matter. On Inauguration Day, January 20, 2017, the new White House Chief of Staff, Reince Priebus, issued a memorandum to the heads of Executive departments and agencies, asking them to implement a moratorium on new regulations, with certain exceptions. Apparently, this was the same as the approach taken at the start of the Obama and earlier administrations.
No one at the Consumer Product Safety Commission has received a copy of this memorandum or other instructions from the new administration. It is not clear that the regulatory freeze is even intended to apply to independent agencies. Nevertheless, as a policy matter, the CPSC often follows the spirit of Executive Orders and other White House directions, even when they are not directly applicable to independent agencies. I believe that course is appropriate here, particularly in the earliest days of the transition from one administration to another.
Despite my abstention, I want to mention a few concerns about this notice of proposed rulemaking.
Some provisions of the proposed rule lack support in the record. Unless those gaps are filled, they would prevent us from making the findings needed for a final rule under the Federal Hazardous Substances Act (FHSA). Therefore, I want to strongly encourage all stakeholders to share their views and data with the Commission, particularly with regards to the safety benefits of the rule as well as the cost impacts. This proposed rule covers a lot of territory, adding new requirements and limits, and restricting additional chemicals.
Many of the proposed requirements are based on provisions of the American Pyrotechnics Association (APA) voluntary standard 87-1. Under our law, even though we are proposing a requirement reflected in a voluntary standard, we are not relieved of the need to support that requirement with findings. We must show that the requirement is adequate to address the risk and that it is the “least burdensome” requirement that will address the risk.
I am particularly interested in hearing comments on staff’s proposed recommendation to align the mandatory standard with the American Pyrotechnics Association Standard 87-1 on the method for determining which fireworks are intended to produce an audible effect. Instead of the notorious “ear test,” the proposal would use fine metal content to determine which fireworks devices are intended to produce an audible effect and therefore are subject to the 2-grain limit on pyrotechnic content. Staff is looking for further information to support the proposal or any alternative proposed. I believe it is also very important to establish that the new test is generally equivalent to the old, or if not, to justify any change in scope or stringency.
At the recent staff briefing on January 11, 2017, Dr. Orland stated that CPSC staff has been working with the APA on updating the APA 87-1A standard, but the process has come to a standstill, at least until our package is released for notice and comment. Dr. Orland indicated at the briefing that the APA was waiting to see our NPR before further advancing changes to APA’s standard. Nevertheless, he seemed confident that the APA standard and the proposed rule could be aligned and reconciled. I am very interested to learn of the progress of the APA 87-1A standard once our proposed rule is out for notice and comment.
I am also very interested in stakeholders’ comments on the proposal to add lead, lead components and HCB to the prohibited chemical list and setting contamination limits for these prohibited chemicals. At the CPSC briefing, my colleague, Commissioner Mohorovic, inquired as to the need for a Chronic Hazard Advisory Panel (CHAP) to address certain prohibited chemicals. This issue may now be moot in light of an amendment offered by the Chairman and approved by a majority. Nevertheless, it remains important to pinpoint the rationale for regulation of all such chemicals and to make sure that the restriction specified in the standard matches the stated rationale. This is another topic on which I want hear more discussion from stakeholders.
The changes being proposed today could have the effect of imposing greater restrictions on consumer fireworks than our current CPSC regulations. Therefore, it is very important to hear directly from our stakeholders, and I strongly encourage your feedback.