Commission Meeting – Notice of Proposed Rulemaking Regarding Amendments to the Fireworks Regulations

Good morning and welcome to this public meeting of the United States Consumer Product Safety Commission we have one item on our agenda this morning a hearing to give interested members of the public a chance to provide oral comment on CPSC’s notice of proposed rulemaking regarding amendments to the firework regulations I’m very grateful today we have two panels of presenters all of whom have taken the time to be here this morning and to share their expertise and their insights on this matter I just want to make sure you understand that your input is invaluable to this commission and we appreciate you being here to begin with I’ll just go over sort of the rules of the road and how today’s public hearing will proceed presenters have been divided into two panels as seen on the agenda each presenter will have ten minutes to deliver their comments our secretary Alberta Mills will keep track of your time thanks well I have the opportunity to thank you to Alberta and Taraki I should say – MS Mills and miss Hammond and all of the office of the secretary for you all of your help for today and every day I would respectfully ask that our presenters track the lights in front of them the yellow light indicates that you have one minute remaining in your time after all the panelists have presented the commissioners will have five minutes to ask questions in the interest of time and out of respect for all of our panelists I want to make every effort to stay on time so that everyone can meet whatever obligations they have they may have later today I apologize in advance if I have to gavel down anyone to close in your testimony or any one of my fellow commissioners but I do want to be cognizant of everyone’s time we will keep our record open for one week if you do not get a chance to say something here today and you really want to have something added to the record or an additional comment you may want to make you are welcome to supplement whatever testimony you have provided or comment further in writing any supplemental materials or information will be incorporated into the record with that we will begin with our first panel which includes mr. John Rogers from the american fireworks standards laboratory mr. steve Houser from red rhino fireworks mr. Joel Anderson American promotional events and TNT fireworks mr Daniel pert phantom fireworks mr Timothy Mullen jr. is here on behalf of Jake’s fireworks and I believe that Erica Jones is here as counsel and mr James Yeager if I’ve pronounced it correctly from climate action associates who was participating with us via phone this morning with that I would ask mr Rogers to begin thank you as your speaker of thank you let’s start that again good morning madam chairman and good morning commissioners thank you all this morning for your time in holding this very important hearing I am John Rogers executive director of the American firework standards laboratory and I believe it’s fair to say that I think I know all of you pretty well you have before you today a proposed regulation that will make fireworks safer and that will likely prevent injuries and even help save lives by adopting existing Federal industry standards this rule will help to fulfill your mission to either mandate or adopt product safety standards that protect American families and that are consistent with other government and industry standards that is exactly what this proposed rule does and the AFSL wholeheartedly endorse and supports its adoption as a mandatory rule before we get into the details of the NPR I want to take just a minute to talk about the AFSL and about the quality improvement program that we manage in China we believe this program substantially enhances the safety of fireworks sold in the United States prior to my go into AFSL I served as a compliance officer at the CPSC and was principally responsible for enforcing the agency’s mandatory fireworks regulations for about 13 years in 1992 I was approached by mr. Joel Anderson who will speak in just a few minutes representing TNT fireworks he’s my very good friend and

colleague and he’s also the person who persuaded me to join AFSL so I think it’s fair to say that he is the founder of AFSL and we’re delighted to have him here today there were other companies involved early on as well they talked to me about establishing a voluntary standards organization that would adopt both the CPSC and DOD regulations and develop additional voluntary standards to make fireworks even safer than what the minimal mandatory regulations of CPSC required this was an extremely bold an important step for the fireworks industry at that time frankly the industry was being threatened with the possible nationwide ban of either all or certain classes of fireworks due to the inability of the industry to comply with the basic CPSC regulations and the fact that injuries to consumers were at an all-time high and so that’s what we did and that’s what we have been doing for the past 25 years of AFS L’s existence the AFSL has established and regularly updates through its standards committee standards for every existing category of consumer fireworks covering everything from fireworks content and Composition to consumer warnings as I mentioned earlier FSS dances AFSL standards also incorporate mandatory CPSC and DE ot fireworks safety standards we also established a comprehensive and rigorous testing program which I will describe in a little more detail below with a total of 257 importers and shipper members we estimate that AFSL members represent 85 to 90 percent of all consumer my works sold in the United States approximately 55% of our members are members of the American pyrotechnics Association and approximately 45% of our members of members of the National fireworks Association there are some overlap with some companies being members of both associations so it’s fair to say that the FSL test that the FSO test not only for the larger importers in the industry and there are actually only a very few large importers but many small importers as well including companies that import only one or two containers each year all AFSL importers members agree under contract to have all of their products tested by FS LS independent third-party laboratory bureau veritas and you will be hearing from mr. Rosati at the advertise a little bit later this morning testing is done primarily at the factories in China prior to shipment to the United States the AFSL program also facilitates certification by our members to both CPSC and AFSL standards on a specially designed website established for that purpose which CPSC staff have access to and use regularly approximately 30,000 shipments fireworks are imported each year through our program and we test using a statistically valid sample plan in 19 in 2017 approximately 7 million cases of fireworks were tested under that program approximately 93 percent of these cases were complying and that 93 percent has been fairly consistent over the past five years we also have a domestic program wherein we certify any product that happens to be manufactured in the United States but mostly assortment packages that are imported by our member by comparison I probably don’t need to point this out but CPSC’s program which is rigorous in its own right is dramatically smaller than AFSL in the sense that you guys test somewhere in the area of two to three hundred samples each year if our members fail to comply with their obligations they can be suspended or terminated from membership and the AFSL bullet can and does regularly take such actions the FSL program is not easy or expense or inexpensive to comply with but I have been hardened over the years by the commitment and dedication of large the large majority of our members to do so it is our firm belief that the AFSL program greatly increases the safety and compliance of consumer fireworks sold in the United States in fact the rate of

injuries associated with fireworks in the US generally has been declining since the program’s exception back in the early 1990s with that brief background in mind I say again that AFSL strongly supports final adoption of the proposed new regulation currently before you the rule is we believe absolutely necessary to bring CPSC standards up to date and in line with AFSL and d-o-t standards my colleague from the American pyrotechnics Association is Julie Hackman who joined us and our consume it in our comments to the CPSC will address the APA 87 – 1 and proposed revisions at the industry and d-o-t standards in more detail during her testimony without going through a recitation of the proposed new standards in the NPR which I’m sure you all have been thoroughly briefed on let me focus on what AFSL believes to be the most important and to some extent controversial aspect of the rule that is proposed rule to ban fine mesh metal powders in the break charged composition of REO fireworks devices in terms of both numbers and value aerial devices have become the most popular product segment of our consumer fireworks in the United States representing 60 to 65% of all imported fireworks shipments each year as you know the spanda will replace the decades-old calibrated sound test which we like to refer to affectionately as the ear test to determine whether or not fireworks are intended to produce an audible effect there’s been a long history with that regulation which I won’t get into today I would suffice it to say that well many many years AFSL has been engaged in an effort to reliably replicate the audible effects test I can recall taking the CPSC tester to China with us to to try to teach our teams there how to do the ear test and I have to smile every time because there was a lot of non communication going on that had nothing to do with the language barrier it was fervor difficult to try to explain to 40 different people how you listen to a product to determine whether or not it’s overloaded during the past 20 years we’ve also worked often in conjunction with the CPSC technical staff on a variety of other methodologies to measure the explosive energy of aerial fireworks devices these include the snowball test the use of decibel meters in the field the more recent CPSC cage tests and there have been other efforts noting that we have tried to date provides what our members on our program need the most that is a test that a subjective reliable reproducible and field expedient this is what the current proposed standard and test methodology represent and this is why we support it so strongly use me mr Rogers I apologize your your 10 minutes is up yes ma’am in the interest of time all of your comments have earned submitted the record and all each one of the guff us have a copy of them thank you very much mr. Hauser yeahjust Thank You commissioners for the opportunity to to present thank you very much mr. Hauser madam chair and commissioners on behalf of the National fireworks Association and its 1,200 members I thank you for holding this meeting to examine the regulations proposed in the NPR NFA represents a broad spectrum of the fireworks industry including manufacturers importers distributors retailers and individuals its mission is to promote the widespread and safe use of consumer fireworks NFA is especially proud of its role that it plays in looking out for many of its members whose voices are sometimes drowned out in a small industry with a handful of dominant players NFA appreciates the hard work and dedication of CPSC including its technical staff in attempting to improve fireworks regulations in the United States and hopes to continue in earnest dialogue about a mutually shared goal of consumer safety safety is not only critical to NFA members for business reasons but also for personal one’s NFA members enjoy fireworks with their friends and families for pleasure and to celebrate holidays or other special occasions the last thing any of us want are unsafe fireworks after careful consideration of the proposed rule NFA has serious concerns with the proposed meddles ban which would prohibit all aerial devices

that have any powdered metal in their births charges my comments are directed towards the burden that this regulation would place on the nFA’s members many of whom derive more than 50% and some as much as 90 percent of their sales from such aerial devices the most obvious burden arising from the proposed rule is the dramatic increase in failures of aerial devices that are currently permissible under CPSC standards according to CPSC’s random testing of fireworks samples collected from the office of compliance 84% of samples failed under the proposed medals ban that represents a 394 percent increase over the 17 percent failure rate that the that was observed using the ear test the sharp spike in failures in this sample is alarming nfa is unaware of any subsequent data from the CPSC that would relieve these fears nFA’s testing also showed significantly greater failure rates than what CPSC has a reported occurs under the ear test so while NFA members may bristle at the current economic costs that arise from the subjectivity and unpredictability of ear test failures imposing a test that is likely to drive more failures will only lead to more costs if there were ever an instance of jumping out of the frying pan and into the fire this appears to be it the severity of the financial harm caused by the increase in failed products will be magnified for small businesses many of which purchase only a few containers of fireworks each year if those fireworks fail CPSC is testing the businesses could lose their entire investment and have no means of replacing the inventory in time for a fireworks season while big businesses may be able to survive the loss of a containers worth of fireworks or many more for larger players a single containers worth of product can put a small company out of business this is particularly true for some companies who buy these fireworks on credit if their containers are seized by the CPSC they not only lose the product but are still straddled with the debt then they must also have the product destroyed which could lead to even more costs NFA struggles to see a countervailing benefit to this burden from a proposed rule that is written in a way which may allow more powerful devices to pass while less powerful ones could fail for example a small aerial device with 1% powdered aluminum in the burst charge would fail and be deemed unreasonably dangerous conversely a larger aerial device with a nonmetallic but more explosive burst charge would be deemed safe how is this logical turning now to the actual causes of failures many of the failures identified by the CPSC staff were due to low single digit percentages of metals that are most likely the result of contamination and manufacturing variances rather than an intentional effort to produce an overloaded product someone who wanted to create an overloaded product would use much greater amounts of powdered metals likely 10% above to do so if any limitation on powdered metals and burst charges is to be imposed it should be one that reflects current market norms zero is unjustifiable and unattainable the NP R suggests that to meet the zero tolerance limit of the proposed metals ban manufacturers would simply swap out burst charges compositions as if fireworks for fast food hamburgers where you could trade pickles for lettuce the reality is that businesses especially smaller ones may be forced to incur significant costs to change their devices to ensure compliance for context virtually all consumer aerial fireworks are manufactured today in China which supplies not just the US but also Europe and other parts of the world with differing standards fireworks are made by hand and there are greater variances in the manufacturing process that can be expected for most other types of goods many small businesses that buy directly from Chinese factories lack the purchasing power to persuade a factory to take all of the steps that would be necessary to reliably produce devices that will comply with the proposed metals ban these steps may require ultra pure chemicals elimination of contaminants substitutions for clay plugs more adhesions for Stars or other changes a small company lacks the ability to get a factory to make these changes without paying for them on the other hand big business may be able to extract these changes as they have the financial power to purchase entire production lines thereby influencing how all devices will be made in a particular Factory the cost of testing is also likely to go up under the proposed metals ban the XRF device used by the CPSC cost approximately forty thousand dollars and there are costs of calibration and training these costs are more likely to impact smaller companies especially those that want options in the testing laboratories that they choose to use looking at all of these costs including those of increased

product failures manufacturing and testing it paints a dark picture for many small businesses especially those that our independence small fireworks businesses are already under significant pressure from higher costs for paper from recently enacted Chinese pollution control measures and increases in the shipping and transportation rates it is not hyperbole to say that additional pressure from the proposed rule may be more than these businesses can bear in sum there are likely to be significant economic burdens that arise from the proposed metals ban as pointed out both in comments by NFA and by the US Small Business Administration’s office of advocacy these burdens are not accounted for in the cost-benefit analysis in the NPR weighed against the speculative safety benefits of the proposed rule these burdens prevail NFA again oppresses expresses appreciation to the commissioners technical staff and all involved in the rulemaking proceeding for what we recognize as sincere efforts to protect consumer safety and to address Universal frustration with the ear test but the proposed metals man misses the mark on both in closing the NFA would like to meet with APA and other stakeholders and continue our conversation with CPSC staff to have a vibrant exchange of ideas and opinions this is good for the rulemaking process and helps to ensure that any proposed regulations which have the potential to significantly impact the lives of so many people are thoroughly vetted and will likely achieve the intended results we encourage everyone’s participation in this project in this process and hope that we can soon begin an earnest and robust dialogue outside of the formal rulemaking process to pursue a satisfactory outcome for our industry and public safety thank you thank you mr. Hauser mr. Andersen good morning madam chairman and commissioners and thank you for holding this important hearing today and forgiving all of us associated with the AFSL and APA an opportunity to provide you with our comments I’m Joel Anderson director emeritus of the AFSL and my company is American promotional events known in the industry as TNT fireworks there I serve as chairman emeritus and Product Safety liaison to the AFSL APA CPSC d-o-t as well as China manufacturers I’ve been in this business for over 50 years and I’m aware that this NPR before you represents far and away the most significant updating of CPSC fireworks regulations that’s ever been attempted it is timely it is important and I thank you for it as John Rogers mentioned I was one of the original founders of AFSL 28 years ago served as its president for the first 10 years and had been actively involved with the organization since I can tell you without equivocation that the AFSL and cooperation with CPSC represents the single most significant factor in the industry and reducing injuries associated with consumer fireworks as I believe all of you know the AFSL program is a real program producing real results it incorporates all of the requirements of the CPSC the d-o-t but goes beyond to other areas that AFSL investigation has found to be safety issues that needed to be addressed the program has real teeth but it’s voluntary your regulations or mandatory CPI deities are mandatory participation in the AFSL program is voluntary and importer can can comply with the AFSL program or not as they choose most choose to comply most conform to AFSL regulations a few don’t the AFSL Standards Committee which is a key part of the program as well as our China testing program our regularly updated to address new products and new safety issues and concerns I never cease to be amazed at how rigorous and impactful these standards and testing program are and as John mentioned I can tell you from personal knowledge that those standards we oppose upon ourselves are not easy nor cheap to comply with nor is the huge amount of numbered product testing that we do in both China the United States it’s expensive it’s difficult but it’s necessary because of the nature of the products we deal in with that said I and the board of directors of AFSL strongly support the NPR before you with the

modification to the proposed ban on metal powders and burst or break charges that have been mentioned it will bring CPSC standards more in line with a AFSL and APA d-o-t standards and regulations thereby creating a more consistent and level regulatory playing field and more importantly we believe it will prevent injuries and deaths from the use of even misuse of consumer fireworks in this country the NPR contains important composition limits prohibits the expulsion of metal or other fragments establishes quantified limits for hazardous chemicals and in several other ways will make fireworks safe from safer for our most important constituents see the American consumer the contents of the rulemaking have been well researched well vetted and again we we endorse them fully with the modifications that we’ve recommended like John I believe that the most important and absolutely necessary proposal in the NPR is to effectively ban metal powders and aerial break charges above a small allowance for metal contaminants now some in the industry have speculated is reflected in comments to the NPR in testimony this morning that this ban on metal powders will devastate the aerial fireworks business and even put many importers and manufacturers out of business I’m here to tell you that as Ronald Reagan once said it’s not that they don’t know what they’re talking about it’s just that so much of what they know isn’t so consider the well-documented fact that for thirteen hundred and fifty years since China invented fireworks consumer for aerial devices did not contain metals and explosive charges metals used in fireworks to increase their explosive performance is a relatively new idea that was only invented and introduced to the industry 10 or 15 years ago prior to that fireworks explosive charges did not contain metals and they performed just fine when metals were introduced cost went up not down there for the elimination of metals does not increase cost they will decrease cost can it be true that the elimination of metals will devastate the industry of the industry performed quite well for centuries without them any common sense does know it’s also been brought to CPSC’s attention that a percentage of the aerial device is tested by CPSC failed the ear test the ear test as we all know is subjective and it’s it’s difficult to conform to because of the subjectivity contained in it the proposed rule in the proposed rulemaking is odd is object it’s not subjective an item either has less than two percent or more than two percent metal in the explosive charge it’s my view and I think facts back this up that failures under the proposed rule will not go up they will go down the only way they’re going to go up is if companies continue to manufacture product that has high levels of metals in it if they eliminate the metals as the regulation requires then the failures from the items will go down not up and therefore cost will go down my company has extensive tested our aerial products and I know that other companies have done this thing and I can tell you we are confident it will not negatively affect our business at all because we compliant with the existing do T&A FSL standards prohibiting such and if other companies are complying with those standards and the related federal regulations their compliance cost should likewise be minimal or non-existent and I’ll note here that our testing lab bureau veritas has confirmed that this test will not significantly increase their cost nor will they raise testing prices because of it after testing more than 1,600 aerial fireworks bv concluded that a limit of 2% of fine mesh medals is not only a safe level but would bring about only bring about 10 to 15 percent of aerial product currently on the market into non-compliance and I say again that 10 or 15 percent non-compliance would be product that was deliberately manufactured with metals and the break charge in excess of 2 percent it’s my company’s experience and that of many of my industry colleagues that factories are already anticipating adoption of the CPSC standard and increasingly keeping metal powders out of brake charges so

clearly for the vast majority of fireworks manufacturers and importers this adoption of a limit in metal powders will have no impact whatsoever now metal powders do give a much more energetic effect to aerial fireworks and certainly a much louder one but that’s exactly the point CPSC do T&A FSL standards are all designed to prevent overly energetic fireworks of all kinds including aerials speaking on behalf of AFSL we always walk an important fine line between keeping fireworks safe while assuring that they’re enjoyable excuse me very much a fine line between keeping fireworks enjoyable while ensuring their ease to please safe and this current proposed ban as well as the other proposals than the NPR is fully consistent with both of those goals speaking for the AFSL Board of Directors I can tell you we have exhaustively examined and yet debated in some cases heatedly the metal powder band for over two years and we’ve concluded that it and the XRF test method proposed in conjunction with it are the best most effective means of reducing injuries and deaths from aerial fireworks I will tell you and I think I speak for all the members and leadership of the AFSL that it is our highest priority to prevent injuries and deaths from fireworks of all kinds while misuse is often a factor in incidents in the fireworks business there’s no excuse for not doing anything everything possible reason to prevent misuse or to prevent serious injury or death arising from misuse madam chairman and commissioners I know you share this overriding goal of injury prevention and because of that I urge each of you to vote to approve the final rule with a relatively small modifications the AFSL and a PA have suggested doing so will fulfill your commitment and mission to maximize consumer safety and will go a very long way to helping us fulfill ours thank you for your time I would be happy to address questions Thank You mr Anderson mr. pert is it / – or pert puritan madam chair thank you good morning madam chairman and commissioners thank you my name is Daniel Pierre director of government affairs for phantom fireworks phantom fireworks has been in the consumer fireworks business for more than 40 years operates in 44 states through thousands of different retail outlets thank you for the opportunity to provide our comments on the promote proposed amendments to fireworks regulations our company has a very long history of advocating for consumer fireworks safety both in the use of consumer fireworks as well as the materials and the amounts of those materials used to create consumer fire vanna believes that both the integrity and the longevity of our industry is directly tied to the safety of our products and how they are used today we would like to offer our support for the proposed changes to determine trace levels of contamination of fine mesh metals and brake charged composition the methodology being proposed in the XRF test methods is clearly more scientific and reproducible than the decades-old and arbitrary ear test for sound tests the proposed rule addressing the purposeful introduction of fine mesh metals into brake charged composition merely repeats what has been in place in DotA FSL and APA standards for years which is to say it is clearly not permitted the presence of fine metal powders and brake charges has been shown to increase the energetic effect of fireworks and this additional energy intensifies in a correlative manner with the amount of fine metal powder present in the brake charge this poses a threat to consumer safety and therefore it is appropriate to be addressed in the proposed changes CPSC has shown a willingness to provide for an acceptable manner of unintentional contamination of metal powders and we believe that a 2 percent by weight margin of error is acceptable and practical given the lack of automation in the process of manufacturing of consumer fireworks while less has been proposed some would still like more but 2 percent seems an acceptable variance without compromising consumer safety at that point the AFSL is commissioned the testing of 1,600 reloadable aerial shells and mine and shell devices and found that 80 to 95 percent of those items had passed with a one to two percent contamination level of fine mesh metal powders given the history of the consumer fireworks industry’s willingness for compliance and the fact that we are already discussing an extremely low threshold we would argue that setting the limit at

less than 2% would make compliance extremely difficult and unfairly punitive and potentially negate the good faith attempts we would have made to meet these standards and others we hope it will consider our comments as you proceed with your rulemaking process thank you for your time today and I’m happy to answer any questions thank you very much mr. Mullen madam chairman commissioners thank you very much for allowing us this opportunity today to present our remarks on behalf of Jake’s fireworks Jake’s has been in business for over seventy years and is one of the largest importers and distributors of consumer fireworks in the United States and Jake’s is absolutely committed to the Commission’s goal of regulating fireworks to provide safe fireworks for consumers here is something else I think we all agreed on that the ear test is ready to be eliminated everyone agrees that it is subjective it’s not repeatable and it therefore creates great challenges both for regulators and for stakeholders my remarks today have a very narrow focus and that is on the proposal the other witnesses have testified about concerning the elimination of fine mesh powders and brake charges before addressing that topic though I want to describe generally how a reloadable Schell aerial fireworks device works and I have a little bit of an exhibit to show and I believe that the Secretary has papers for you that you can look at you already have them thank you this is this is a very basic design actually from a fem sir application of one of these devices and you will note the various components which is very important at the bottom is the lift charge there’s a fuse that goes into that lift charge and the consumer after inserting the device and the tube lights that lights the fuse which ignites the lift charge lifting the device into the air there’s another fuse that connects to the brake charge and there’s a delay a couple of seconds that occurs before the brake charge ignites and that happens when the when the device is well away from consumers and I’ll talk about some misuse scenarios in a second but I think very important to recognize two things number one when the 1990 rulemaking took place looking at reloadable aerial devices all of the energetic components of the device were considered in looking at the regulation and what we are now doing is we’re really just focusing on the brake charge and yet it is the brake charge which is the energy that has been by design is removed from the consumer as a result the brake charge does not have a nexus with injuries and by focusing on that the CPSC is devoting resources that could be better used to focus on things that actually do cause injuries a little bit of history the audible effects test was adopted in 1973 the band high powered ground-based fireworks that were being used to deter pests and were somehow finding their way into consumers hands maybe even mine back in those days and m-80s and the cherry bombs were being used for pest control today’s reloadable aerial shells were not available then and the audible effects test was never really intended to apply to them in fact the FDA which regulated fireworks then said that that test was not intended to apply to common fireworks and indeed the CPSC’s regulations permit aerial shells of less than 1.75 inches in diameter based on a commission finding that it could not establish a clear relationship between kinetic and your energy and injury potential how do injuries occur with these types of fireplaces well there are three typical injury scenarios all of which constitute misuse the first is where the launch tube is placed somehow on the body head on the chest in that case the only charge related to the injury is the lift charge because the device is going to be expelled from the tube by the lift charge the injury occurs from the from the the tube being placed on the body

and the reaction and the break charge is going to operate well away from the consumer another injury potential also involving misuse is where the shell is placed in the tube upside down there are certainly warnings and instructions about how to avoid that and in that case the first charge to ignite is the lift charge it drives the firework device into the bottom of the tube and then the break charge may be a component of an injury but it is the total energetic potential of the shell which creates the injury and the final one is the shell being held in the hand not used in tube and there again it is the lift charge that is causing the injury these injuries occur independent of whether or not there are metals in the break charged metals in the break charge taking metals out of the break charge will not prevent those injuries it really is no proof of any injury that has occurred as a result of metals in the break charge or even as the explosive power of the break charge great charges are already subject to limitations for safety under APA 87 – 1 there’s a limit for total weight of composition they’re limited to 25% of the composition of the shell and there is a prohibited chemical list so in summary we would urge the Commission not to adopt the ban on fine metal mesh powders as there is no injury Nexus to further regulate the break charges CPSC resources would be better left to other issues related to reducing injury and consumers in accordance with your mission so thank you very much thank you very much and our last presenter for our first panel is mr Yaeger who joins us on the phone am i pronouncing your last name correctly mr Yaeger are you there mr. younger although the phone shows he’s connected we’re not getting a connection so I think we will hello I’m sorry I was actually on you I apologize okay common mistake no problem thank you for joining us this morning yeah good morning so my name is younger I’m the principal of climate action associates we are actually not in the fireworks business we do a lot of utility regulatory policy so I appreciate the Commission’s willingness to provide me an opportunity to speak today on behalf really of the American pirate and consumer I am a personal enthusiast and I’ll make the following comments so again I thank the Commission for the opportunity to provide these comments and represent a stakeholder group that I feel has been underrepresented in all proceedings on this matter today the American pyrotechnics consumer in my opinion the Consumer Product Safety Commission has not yet demonstrated that the proposed regulations are required or justified in the name of consumer safety the Commission’s argument is based on a simple premise that birth chart is an aerial consumer 1.45 works have evolved to contain metals that make them stronger an Ergo banning the metals will make fireworks safer this is not entirely true or is it though it’s not as simple as that while Commission staff site fancy terms like quote-unquote quadratic analysis to confirm that metals do in fact make first charges stronger this is really not relevant everyone knows that metals do make birth charges stronger on due to basic chemistry but what is not being done if the Commission is not showing that there is a statistically significant correlation between injuries and the introductions of these metals to justify banning any specific composition in the name of safety they should be required to do so in my opinion to show a relationship the Commission would need to develop a 30 year time series analysis of injuries normalized by sales per capita redacting many injuries from illegal fireworks and consider compensating or increased reporting due to technology furthermore they would need to develop a third your time series first charge composition to model the gradual introduction of metals that it seeks to ban and finally you would need to analyze these through time series to show a statistically significant correlation between injuries and the introduction of these metals in my opinion anything less than this is

statistically bunk and really Santa mouth to just regulating because you feel that it it feels good to do so in my opinion it’s very possible and we heard speakers today that echo this that given the expanding fireworks market the rate of injuries from legal fireworks is already going down and many 15 regulations are working we just don’t know although some injuries are definitely newsworthy and scary in today’s internet connected world implementing reactionary regulations based on emotions is wrong and a harmful CPSC overreach at this point I feel you have to ask yourself are you regulating because the consumers need you to do so or because industry is asking to do so it almost appears as though that the the concept of statistical significance in the in the data and between injuries and these metals is not really important almost a field as though that’s been set aside because there’s enough industry support for these regulations and that’s a mistake to think that way thousands of consumers have spoken against these proposed regulations and I advise the Commission not to mistakenly interpret support for this regulation by the industry’s largest players or by trade groups like the American pyrotechnics Association as some form of valid surrogate for the voice of the consumer it is not believing that would be analogous to believing that the health insurers Association of America speaks for the American healthcare consumer and we all know that they don’t the proposed regulations have a conflict of interest that I believe the Commission needs to recognize tightening regulations always favors large connected industry like those that dominate the APA and other industry groups by increasing the cost of entry for startups and by a stifle in competition in response to liberalization of fireworks laws nationwide it would be convenient for large industry to control competition by lobbying for unnecessarily burdensome regulation and testing requirements a decade ago for example a small fireworks business pretty much meant setting up a retail tent and shopping established industry suppliers to fill your shelves with stock today however streamlined with streamlined global trade new entrants can bypass established industries in Turrentine manufacture imports wholesale and retail innovative consumer product at lower and lower prices furthermore established industry supplies professional-grade 1.3 G product to display companies this business is highly regulated harder to enter and attracts less entrepreneurs since the market is smaller the 1.3 G business would benefit from restricting metals in birth charges in consumer products because that would help transfer some of the best portions of the consumer lines to be regulated under 3G or at least lower the quality of consumer products to make one point creating products more attractive perhaps not coincidentally the metals targeted in this action have helped evolve consumer products to the quality point where else loves high schools sports clubs and municipalities can afford to produce small shows inexpensively with consumer products made possible by competition in the 1.4 G market consumer products are cheaper and more dazzling and ever competition is working – this is a good example of the free market working I’d like to conclude by saying that as the father of two young children aged 4 and 8 I absolutely support safe fireworks I absolutely recognize that sometimes products need to be regulated for safety regardless of consequence the product costs or if sadly these regulations help consolidate markets around big industry players in this case however the Commission has not met the burden of proof required to implement these regulations safety and state that implementing these regulations will really hurt small business and the consumer thank you for the opportunity today thank you very much and with the conclusion of that testimony we will begin our round of questioning from the Commission just as a reminder each Commissioner will have five minutes to ask their questions from the panel and we will have additional rounds if necessary so I will begin the round of questioning mr. Mullen your last statement intrigued me when you mentioned that CPSC would be wise that’s my word not yours to use our resources in a different way than this proposed rule in terms of addressing injury from the fireworks can you expand on that can you talk a little bit more have you thought I think we all agree as you mentioned the ear test is it’s got to go we need something more objective but what beyond what we’ve proposed in the NPR have you given that any thought well we all know that the CPSC has limited

resources and there are certainly resources associated now with conducting the ear test associated with brake charges just as there would be resources associated with using the XRF test to test for metals we believe actually that the the audible effects test should not be applied at all to aerial devices and so it would be our argument that the CPSC would take those resources and use them to look for other violations that affect directly affect injuries outside of the brake charge I’m not the one to suggest where those resources might best be deployed I think the staff certainly knows where they could use resources in order to find other violations that directly affect injuries and so that would be our request thank you mr Rogers what you’ve mentioned the fine mesh and obviously the the effect it can have on safety what where is the data that supports that that there the injuries with regards to the amount of fine mesh – your mic is on yours enough thank you one of the one of the most difficult challenges that we have faced in trying to to determine an appropriate means of addressing this is this particular problem is that you there is no way really to relate the amount of metal powder that may be president break charges to the severity of injury I guess it’s fair to say that under the right circumstances any amount of powder can cause an injury and our standards committee discussions we have talked about the fact that a single simple firecracker if placed on the head of a child is capable of producing a concussion and so because it involves the human element I’m not sure that there is ever gonna be a way to to say directly and and without question that the metal powder is you can directly relate that to an injury what we do know is that metal powder burns at a much higher rate than other chemicals that are used and we know that the high of the burn rate the bore energy is critic is produced and we know that the bore energy that’s present the more likely there is to have a more severe injury then there is if there are some slower burning food materials being used thank you thank you Mr Houser would you like to comment on them could you please clarify exactly what you’d like my yes the sonĂ­s fine-mesh the metal content how does it affect explosives and then how does that is there correlation with injury and the severity of the injury well I know that in a forthcoming press dr. Schneider will be addressing a lot of the technical and scientific aspects of that question from my standpoint as a as a fireworks businessman I don’t see a direct correlation or have not been privy to any information that would indicate that merely by putting in a small amount of metals to break charge that it would drastically increase the risk or danger of said product particularly because as some other panelists have pointed out break charges have not been directly tied to the causes of injuries rather is merely a component of a fireworks device that possibly could relate to an injury thank you it’s been stated an NFA made the request that you’d like to meet with APA and all of the stakeholders regarding a path forward and how can we have a discussion here in order for our CPSC staff to participate it would have to be an open meeting and I’m sure our staff would be interested in attending that meeting and in hearing comments and being a part of that discussion what is there any objection to or concern about

CPSC staff participating in the fact that would have to be an open meeting absolutely none in fact we would we would much want to involve the CPSC because I believe that if we can get all on the same page at the same time and harmonize our efforts singly and together then we can be best in a position to put forth an effective rule and regulation that is for public safety and can allow businesses to thrive and survive thank you very much Commissioner Adler thank you very much mr. Rogers I’m gonna ask this question of you but I would like it to be commented on by anybody who feels that they have something to add and that is in your testimony and not just yours you stated that fine mesh a metal powder limit is a requirement that all fireworks manufacturers and importers must meet in order to comply with DoD regulations so my question is so what’s the problem I mean where is it that the NPR begins and do tea ends and there’s not overlap so maybe if somebody could explain that to me then I could understand what the strenuous objections are sure I think the you know the the limit on fine mesh metals exists both in the AFSL standards it exists in the APA a two 7-1 standards that have been adopted by d-o-t and the limit for metal is zero the the problem is that not all manufacturers in China are complying with that and in in the case of AFSL it’s been our experience that companies who choose to deliberately deliberately introduce metals into their products simply bypass our program they ship it out of China without without having us test it in the case of that why are they not running afoul of d-o-t or is it the case they’re running afoul of DoD but then without much consequence I think the and I know that there are some representatives from D of T present here today if they’d like to address this but my sense is that the d-o-t standard is say it’s it’s a composition standard and you have to have a formula that complies with D of T in order to get in ax number the problem seems to be that there is a very limited amount of enforcement by D ot of what those compositions are and so companies understand that and pretty much are able to add metal powders without being detected by deity does anybody else care to comment on that point or is he accurately summarized it if I could just briefly comment and I’m counsel I’m not in the fireworks business yes well it’s me neither as it’s been explained to me there is it it may not be deliberate introduction in metals there are metals throughout the fireworks manufacturers in fact there are metals in these various shells the facts have metals in them and so and and everybody recognizes that there’s contamination in fact the staff has suggested that although the rule be set at zero that there be a 2% enforcement discretion and so I think it’s well recognized that metals are introduced looking at metals gets away from the question of whether in fact it’s the break charge that is causing the injury and we know that you can have a break charge that does not have metals in it which is energetic enough to cause an injury miss Rowland you raise an interesting point I know this has been raised throughout we hear a request that we change the zero-tolerance to some kind of percentage contamination level and I’m wondering if anybody has a suggestion I’ve heard 1% 2% I’m not asking for an auction or a bidding but can anybody give me a sense of where you think the line should be drawn mr. Adler I think at 2% we’re taking the easy way out in talking extensively to Chinese manufacturers on the question they say that zero tolerance is possible to meet but it’s extremely difficult and it’s very expensive and they don’t want to go there and they urge the industry not to go to zero tolerance we’ve looked at the other end of it and determined this is principally through testing done by BV that you can include metals up to 4 or 5 percent without any material effect on the energy produced of the firework to is between nothing and 5 Chinese

manufacturers say 2 percent easy we can do that it’s not a problem BV tells us and the research tells us that a 2% you’re not increasing energy energy you’re not going to hurt people so it’s it’s a middle number I see my time is expired I have a few more questions hopefully for a second round Thank You Commissioner Adler commissioner Robinson thank you um we have to move very quickly because I have lots I want to clear up first of all all we’re doing in these discussions is not looking at the type of device that’s a danger we know that the devices that need to meet the to grain luminaire causing severe injuries and death and in fact in 2015 9 of the 11 deaths are related to fireworks were from the devices that are commonly subject to the to grain limit we’re just talking about the method of identifying these devices for that further testing of whether they have more than two grains we’ve heard a great deal about the sound test and now we’ve moved on and what I thought was such an elegant solution that the the refined mesh metal the limit that the APA that has a consensus standard which I understand Jake’s is on the board of the APA and the AFM AFSL so they agreed to this standard d-o-t makes it mandatory and the AFSL has adopted it and tested to it and there’s 0 4% of contamination and yet what we’re doing is lining us up with exactly what’s required and so I’m confused on two fronts the people who seem to say yay we like this but let us have 2% and mr. Rogers if I’m understanding what you’re saying it’s exactly what I suspected and what our staffs testing has shown does anybody have any information that you can get to 2% contamination without purposeful addition of these fine mesh metals I think that’s a question that the CPSC technical staff has looked at in some of the samples that they’ve analyzed and my recollection of their their data is that given the the potential for say stars and shale to leech a certain amount of metal into the break charge given given the possibility of material of equipment being cross-contaminated and so forth that even with cross contamination in the materials that even with leaching of metal powder into the break charge it does not rise anywhere close to the level of 2 percent I believe the number that we had from this from the CPSC staff was about 0.4% right which they believe is an adequate level to to allow for that amount of leaching right so so if I’m understanding correctly I know d-o-t lets people self-certify which we all know the problems with that because people can lie on their self certifications and obviously you’ve seen instances where that has occurred is that right that’s correct yes ok so what we’re in essence doing is if we allow for this 2% as I understand it and any of the rest of your time even if you want what we’re doing is saying well we’re gonna let some rule breakers in under this under this dome that’s what we would be doing with 2% right I think the the the key to that to the 2% is that based on all the test data that we that we’ve conducted over the past year in preparation for this rule when you look at the force associated with fireworks with zero percent 1 percent and 2 percent metal contamination between 1 and 2 percent there’s not much difference so it’s a very minimal amount of additional force generated by adding from 1% to 2% when you get beyond that you know there is statistical evidence that suggests that the forces and then begins to increase and as we know as the force increases the potential for a more severe injury increases as well okay and I know deity is protecting people during transportation we’re protecting people during use and foreseeable misuse and you and I’ve had discussions about some of the dumb things people do with firecrackers but my understanding is with this limitation we adapted the DLT standard we actually would be making fireworks safer than just using the sound test but that’s that’s our understanding as well I it’s again you know it’s it’s it’s a reality as fireworks will enter because they’re they’re designed to explode the the the

issue for us is the degree of an ve potential okay mr. Hauser I’m very puzzled by your testimony because do your members just not comply with d-o-t or today’s self-certifying lie or what do we have I mean they’re there presumably they transport their firecrackers so they’re required to comply with the OT that’s a good question I don’t speak to you know what each and every single member would do relative to their certification however we have a large number of members that are also members of AFSL right and we also have APA members I myself have an M&E of a cell member where our question really in concern is for us as the smaller businesses is current market norms and trying to make sure that we can safely produce a product under the guise of current market norms to where you know is there a percentage amount under current norms where performance testing would be effective so that we could maybe establish a set limit and do that with negotiations with the various parties so that we can all learn and get on the same page I’m gonna get cut off because I’m Way over time I hope I was able to help thank you Thank You commissioner okay thank you madam chair mr. Hauser do you want to continue was there anything else you wanted to add to that not really okay I got the most out so I guess I’ll start I’ll pick up with you and then maybe go to mr. Rogers because and if we have it wrong let us know but I feel like you are here not only on your own behalf but also for nfa is that fair to say yes I’m directing the questions appropriately that is correct I mean I’m here as my own person but also as a as a board member and board director of the NFA and and so in your mind or I guess an NFA is mine what what is the safe for fire work then what currently is considered to be a compliant fire work on the market now what does that even mean safer fire work well I think our position really centers around the fact that we believe particularly as it relates to aerial devices that the products we have today are safer than they ever have been before the imports of aerial devices are up to levels where they’ve never been before in terms of tonnage and volume yet the injuries on on a comparable basis statistically are down so statistically speaking we have the injuries decreasing while the imports are increasing so we believe that this is indicative that the products we have today are safer than ever before and that the voluntary standards we try to achieve in the industry and work diligently to get to are working to meet that end for the public safety and so and again I don’t want to mischaracterize or misconstrue what you’re saying so is that nFA’s position or at least your position on behalf of your company that fireworks are sufficiently safe at this point I would say in the general consensus or a general understanding I do view our products as being safe I’ll speak personally for myself I do believe mine are safe I can’t speak to you know no intimate knowledge of every product out there from other people but I do know this there’s not a person that I know in the business that doesn’t always want to make sure that they have the safest product they possibly can and that is a is a concerted focus we just want to make sure that whatever we do to get there to that goal is good for all parties involved and can can helped us survive okay and thank you for that and I don’t know mr. Rogers and mr Anderson who would speak on behalf of a of herself it’s really the same questions is what’s a safer firework from a FSL standpoint let me let me take a shot at it I think the you know it’s it’s known in the industry that there’s a segment of the population that loves big breaks and big bangs and the whole reason that you add metal powder into the product into the break charge is to achieve a bigger break and a bigger bang in order to do that it increases the the energy associated with the product and again the more energy that there is the more likelihood that there will be a dramatically severe injury or even death associated with these products madam

chairman could you cut me a little bit of slack I may go a little bit over my time on this I think this is important though talking about the correlation between injuries deaths and and energetic effect and so forth one of the difficulties we have my company investigates in detail every death and serious injury arising from consumer fireworks sadly in most cases we’re not able to identify the exact item that was involved because the item was destroyed in functioning the police didn’t record it the hospital didn’t record it eyewitness accounts are inaccurate we don’t know exactly what happened in the case of all those deaths what we do know is all those people died from trauma from blunt force trauma that originated from an explosive force there are two explosive forces and these items one is the lift charge one is the break charge over the decades the last three or four decades there’s been no change in the lift charge composition limits are the same composition is the same as the same explosive force today as it did 10 years ago 20 30 40 years ago break charges have changed in the last 10 or 15 years metals were introduced the energetic effect of break charges went up dramatically at about that same time 10 or 15 years ago was when the deaths started going up there’s a very tight correlation between the introduction of metals and brake charges and deaths attributable to consumer fireworks does that prove anything does it prove it came from brake charges no but it’s too much of a coincidence to be ignored on quite fireworks work better if you put metals in the brake charges they’re bolder they’re louder they’re noisier they’re better but they weren’t just fine without metals they’re not quite as good but they are in arguably more safe without the metals and the brake charges so to your question of safe fireworks they’re safer without metals thank you mr. Anderson thank you I have we I believe that we will continue another round of questions I know that Commissioner has some questions we’ve talked a lot about do tea this morning and fins on and I just want to make sure I understand what is the the fine mesh allowed do tea is at 0% and do they have any oh do they have any sort of built-in factor for contamination and the possibility that it may be higher than that and how do they measure I’m I got I’m getting answers but nobody is speaking do they do for prohibited chemicals under the DAT 7-1 do tea regulations that the typical tolerance is about 0.25 percent in terms of how the the regulations are stated for metal contamination at zero in terms of how do t-tests I’m not going to to try to address that I do know that there are representatives here from DoD who might be able to answer that question for you thank you and how do they measure do they use the XRF technology or do they have some other means if anyone knows on the panel I’m not aware that they use the XRF technology at this point and how we will address my questions to do T I want to talk to just briefly mr. Anderson you made some pretty bold statements here in the last few seconds of Commissioners case time in terms of although metals were introduced in the last few years that seem to be the correlation with the increase in injuries can you speak to that do you have data that shows that how do we know it isn’t coincidental it isn’t some other factor that but there is data that backs up that statement we don’t know for certain that there’s a cause-effect relationship here we also don’t know for certain when breaks break charges begin incorporating metals it was certainly sometime after 1990 it’s there’s a high probability based on the investigation we’ve done it was after 2000 they were certainly in there in 2005 and they expanded beyond pretty rapidly from 2005 to 2010 to the level they are today so they began to be introduced between 2000 2005 somewhere in that in that time span if you go back and look at your own figures of deaths

and serious injuries attributable to these items there’s a correlation of an increase in deaths that that pretty well tracks the introduction and the expansion of putting metals and break charges now again does that prove the deaths came from the break charges no they came from explosive force the only change in explosive force was under break charge of the items so it just seems to be too much of a coincidence to be a coincidence Thank You mr. Mullen do you wish to comment on that or Mr Houser well I would only I’m not a statistician and don’t know what the data shows but at the same time as potentially metals are being introduced you also have a very large growth in the volume of these fireworks and so how you separate those those statistical issues I’m not sure but we haven’t seen data that demonstrates that the break charges our cause of increase in injuries or deaths thank you Mr Houser I think one more salient point to consider is that as the popularity of fireworks has grown over all so has the individual hobbyist and while we also could attribute you know we can say during this time period that some of these deaths have created what we can’t quantify is were those injuries from products that were manufactured in China and imported by American businesses in the fireworks industry or were any of those deaths attributable to homemade explosives which would be inherently probably much more dangerous because they’re manufactured with no rules thank you very much my time is about to expire Commissioner Adler just picking up on the point that the chairman raised and again thank you mr. Henderson and mr Mullen one of my questions is that we have a very very refined and sophisticated epidemiology division and I’m wondering if you have any suggestions I mean it’s easy to comment on the vagueness and the lack of specificity of data but how do we improve the data I think mr. Anderson’s points an excellent one when it explodes you don’t know exactly what went wrong so maybe the best you can do is look at some kind of correlation do any of you have any reason to doubt the correlation between the increase in deaths and the use of metals and break charges whether that’s a direct connection or not just curious yeah I have any advice for our for our epidemiology staff maybe it’s better way of putting it I think that mr. Ennis wouldn’t hanging younger yes sorry this is that yes mr. Jimmy hang around the phone I appreciate that yes actually data is something we have a tremendous amount of experience in my company we do data analysis across a lot of different sectors and and it’s very clear I think I kind of state in my testimony you do have to do time series analysis you do have to model the composition of a birth chart I know one of the gentlemen was speculating that the metal showed up at certain times maybe two thousand two thousand five two thousand ten so there is data you can start to develop a model for when you think that showed up and then you just have to develop a time series of the injuries and don’t count for the things if you don’t know so there’s conjecture on what you know a specific device was or not you just count that as a fireworks injury and start working from there and try to show your correlations it’s definitely feasible to do it’s not easy but again it seems to me that if you’re the Consumer Product Safety Commission and virtually all panelists are stated there’s no known link between these metals and injuries you really should be focusing on finding that link before you consider regulating you thank thank you for that comment I have to say that I am a little bit uncomfortable when you say that we need to develop a 30 year time series of injuries I don’t know that that’s available to the Commission right now sometimes you have to act on the basis of less than absolutely pristine information but I did want to go back forgive me I wanted to go back to a point that mr. Hauser was making what we see here are two extremely thoughtful and reasonable points of view that differ and I think people are looking to the Commission to sort of be the referee in this and I feel less like a referee than and more like a football at times in this but what is the prospect I’m asking all the members here for sitting down and having further discussions I asked this in my individual meetings with the

groups and my sense was that you felt that you’d sort of reached your limit of of being able to reach agreement is it really fuel to ask for additional discussion and possible collaboration and cooperation from my perspective and that of the NFA we do not believe we have reached an impasse we have reached out repeatedly and sometimes with disappointing non success in trying to establish good and earnest dialogue with other parties we kind of feel like you know we got left out and our members are saddened and frustrated by that and so we’re speaking as that voice and we want to come to the table this is our livelihood we feel it very personally we don’t have fallback positions many of us so we do want to learn as much as we can we want to share our information I’ve heard some points this morning that made me think that could be a valid point hadn’t thought of that but I don’t really know the basis for which it was arrived at and I and I really really would love to see all of the stakeholders in this get together hammer this out get that safer product that was referenced earlier in some Commissioners comments would other members of the panel care to come in on that I would I would just add Commissioner that on numerous occasions in the past we AFSL APA and and if they have sat down and had conversations about this proposed rule and and what the recommendation should be in terms of where the industry stood with met repeatedly with a combination of APA AFSL at NFA with the CPSC staff at your laboratory and and talked about the data that was available on which to make a decision so there have been numerous meetings where we part ways it seems is that from our perspective we don’t want metal powders used in break charges for safety reasons and we’ve recommended a 2% contamination level to allow for some some deviations and so forth across contamination we’ve never been able to come to any sense of agreement that anything 2% or less was acceptable so the divergence is we we think it’s 2% and I before the Chairman cut you off I apologize I’ve run over thank you so much appreciate your answers Thank You Commissioner Robinson mr. Perret does phantom fireworks comply with the OT standard yes it does to zero I can’t speak to the results of every test that we’ve ever concluded but I can say that our pass/fail rate is extremely good you know of any circumstances under which any of your suppliers fireworks have tested at more than 1% that wasn’t the result of purposeful addition I I don’t know any specific numbers as to what the percentage would be but I can tell you without a shadow of a doubt that any of the product the Phantom is ever imported into the United States that would have failed would have never been as a result of purposeful introduction of fine mesh metal powders thank you um and mr. Mullen does Jake’s comply with the awti standard absolutely they test to 0% well Jake’s has AFSL certificates for all of its imported products so that would be a yes I would have to I’m not familiar with the testing protocol but presumably AFSL tests to the d-o-t standards and as I understand that Jake’s has members of the board of a Aetna Sal and APA I think that’s right okay so Jake’s participated in the consensus standard form API let’s go and just to correct you our staff has certainly not said that two percents acceptable you stated that no I’m sorry I didn’t I didn’t I did not mean that it was acceptable I understood that there was an enforcement discretion that was going to be used just helped a 2% okay mr. hopper Mr Houser you got cut off a little bit but let me ask a simpler question than I did before your members should comply with the DLT standard is that fair that would be fair okay and when you refer to the the market norms you’re referring to companies that are producing fireworks that do not comply with the DLT standards and that’s where your concern is no what I’m what I’m

referring to and I when I use the term market norms and it actually was a CPSC term that came out of a 2013 document where the debate gets on the metals is that whether it’s 1% 2% 5% 4% we can’t say for certain people don’t know they don’t know where to put the number where to pick the number so we’re we’re referencing the market norms is to be something that is equivalent and acceptable toward the market and where it is that dick ative that the market is now but it would violate the LT standards we can agree on that right no I’m not insinuating that the market norm is I’m gonna move on just because I because I because I have limited time here maybe somebody else will follow up with you on that mr Anderson I was interested and thank you so much for your presentation about what your observationally injuries you made this statement that that fireworks are in arguably safer without metals could you both expand on that and at the same time what this this this increase in severity I believe you were referring to would have nothing to do with the amount of fireworks being used is that fair to say and I think you’ve got this that’s fair to say as explosive force increases the likelihood of serious injury increases with it if you decrease the explosive force the degree of explosive force the likelihood of a serious injury or death goes down it’s just simple cause and effect I think in arguably fireworks without metals and brake charges are safer simply because less explosive force produces less injuries it’s like c4 is safer than a nuclear bomb a firecracker is safer than c4 I mean you just you bring the explosive force level down you improve the safety the AFSL is challenging and this is one that is we’ve struggled with for 28 years is drawing the line between safe fireworks and and protecting freedoms in the industry we don’t want to restrict what anyone does we don’t want to limit it unless we need to do that in order to to make a safer product does anybody on this panel have any information to tell us whether fireworks with 2% would be just as safe as 0% or 0 to 0.5% I think we can tell you that based on the testing done by B V there’s no appreciable difference in explosive force between 0 and 2% and we’ve talked again to the china manufacturers and they’ve said 2% would be easy for them to stay within ok and that’s where the 2% gave thanks so much Thank You commissioner K thank you madam chair mr. Hauser can you elaborate on a point that has come up in some of the meetings with the members coming and see the commissioners about explosivity and the fact that in as I understood at nFA’s position was that this proposed rule misses the mark if the goal is to reduce explosivity by focusing solely on the metals and the break charge there are would be in essence loopholes or other ways to have fireworks be just as or more explosive without using metals am I having that right I guess you are commissioner and I will say that dr. Schneider will be addressing some of those in his technical analysis much more thoroughly from a scientific position but what we had had had in discussions and we’re trying to you know propose and well propose but to to teach about is that there are other compositions that could be used as break charges some are called whistle powders or whistle mixes and those are completely devoid of metals but and could be legally used and under chemical restrictions and things like that to make break charges but that they could in fact actually use that kind of a powder to create a more powerful burst charge than a burst charge that had 5% metals in it and there has been scientific analysis on that that I believe dr. Schneider could speak to I don’t want to get out of my purview there yeah thank you for that so so that is that is definitely one of the considerations got it and in terms of

actual manufacturing and producing fireworks is that a how realistic is it that that would be a viable economic option for manufacturers to go do from a cost analysis of the actual chemicals I can’t say exactly that I believe in in most of our discussions that we have determined that the cost would be roughly the same and so in in in those products those whistle mixes for break charges are actually being used in in certain devices today in the fireworks market right and mr. Anderson what I’m curious to know what your position is on that in that if the goal is to reduce explosivity what would be AF s l’s position that this might miss the mark because there would be other formulations for the break charge that would either have the same explosivity or more well the AFS elves as a proponent as is our company on eliminating metals from break charges and not adding anything back in other words going back to where we were 15 or 20 years ago at all time prior to that used black powder which is no an explosive force that easily controlled and relatively inexpensive the China manufacturers we’ve learned over the years are amazingly creative we were told that when we had to get a timing fuse to meet your requirements on the reloadable shells that having a fuse burn time of a fuse that long of five to seven seconds was impossible took the Chinese about two weeks to figure it out and they did it we were told that it was impossible to make a 50 milligram firecracker when they reduced by CPSC from two grains to 50 milligrams took Chinese about the Chinese manufacturers about a week to figure that one out if you take metals out of the explosive charges and the importers want more energetic explosive charges charges Chinese manufacturers will figure out a way so is then there a loophole and the proposed rule where there needs to be something else that would address that concern I would call it a loophole it’s just that in doing what you do you can only be reactive you can’t be proactive you can’t write a 10,000 page document of what might might be put in the fireworks item in the future I think the position of the AFSL is the position that I would recommend for CPSC is deal with what’s out there and if they invent something else then take a look at that but if maybe you could get a group of chemists together and they could give you a a list of 18 different formulas that would produce a more energetic effect that China could use to substitute for metals I don’t know okay and I appreciate that and as I think it’s policymaker as well we yes unfortunately our often in a reactive mode I think we would ideally like to without having a 10,000 page document anticipate reasonably what might be coming down the line and try to have a reasonable approach to it thank you thank you very much I believe we are gonna have one more probably a little abbreviated somewhat for Bri v8 around of questions from the commissioners I just have a couple of questions one of them is just following up on commissioner K and his comments so this possibility Mr Houser you talked about these whistle breakers am I using the right term then we heard that in our meeting it’s it they refer to them as whistle mixes or whistle powders okay and are there you said they’re currently being used now yes there are known instances where factories have used those okay and are there other others chemicals or other substances that are also using to increase – currently to increase this exclusivity not that I am aware of okay so that’s the one right now that’s on there okay good can I add something to that sure whistle lock compounds are extremely fast burning compounds that produces the whistle I’m not aware of any case where a whistle compound is being used in an explosive charge in any fireworks device but one of the problems that we’ve had for years that we continually work on is if you have a whistle device and the exit point of the device becomes restricted it explodes so whistle composition is a highly explosive composition it could be used in lieu of metals I think any chemist will tell you that there’s a danger involved you’re getting into high-risk territory with it but that is a possibility yes if I could add one more point to that madam chairman

this is you know the standards committee as I say worked on this quite a bit art we are aware that there may be some other chemicals in the market that could be used to substitute for metal powder as Joel said what the market is currently doing is metal powder however in the new revision of the APA 87 – one that’s just gone to do tea that possibility was taken into consideration as well and and Julie Hickman might address this a little further in her comments later but the the APA standard has placed some composition limit restrictions on some of those chemicals that could be used as substitutes for full metal powder and that’s something I know that the CPSC staff the technical staff is very well aware of and I’m sure could give you a lot more detail than I can offer today and then the other point just quickly is that in addition to the the break charge issue the CPSC proposed regulation is is also proposing to limit the total composition of fireworks devices and include in some percentage limits on how much break charge can can a product have in relation to the overall composition and taken with the no metal powder those limits we believe are extremely important as well to make sure that products perform within a safer manner thank you very much commissioner thank you very much madam chairman you all point out and I think accurately so that there’s a history of working with fireworks that goes back to the founding of the Commission and before and we’ve marched down a lot of different routes trying to find a good approach to solving fireworks safety I will only say one quick word of defense for the ear test I’m not sure I consider it to be a subjective test I think it’s a judgement call that’s always backed by objective testing of the amount of powder that’s there and that is a test that’s been upheld by the courts I’m not here to say that we should maintain it but I do think that it’s one of those things that the Commission has worked on in conjunction with the industry over the years to try to come up with a good approach and I mr. Rogers I noticed in your testimony you also mentioned some history the steel ball tests that you and the Commission has worked on a decibel level test that you and the Commission have worked on have you seen any approach other than the one that’s in this NPR that strikes you as a superior approach to trying to address fireworks safety and I’m starting with you but if anybody wants to add any comments I’d appreciate it thank you I I can say with with certainty that I have not you know in my days at CPSC we we looked at the ear test as the best option that we had since that time through the AFSL we have looked at the steel ball test it it was pretty good has a lot of limitations and restrictions and unreliability in our earlier days back in the 90s that AFSL we did some work with decibel meters out in the field and we’re unable to create the correct environment in order to get good readings we work with CPSC on most recently that cage test that we thought had some promise and as you guys although that turned out to have some some policies as well and so for the first time in my history in the industry we have a proposed solution before us that works that is field expedient that is simple and that really addresses the the explosive ‘ti of the product and so I’d say this is first time we’ve had all those pieces come together in my history and would anybody else on the panel care comment on this point we’ve been if I made real quickly the AFSL and some of this member companies have been trying to come up with an idea for CPSC to replace the ear test for I know over ten years now we have tried everything it’s not that this has been given a casual look we have worked hard and exhaustively trying to come up with a good answer the XRF test is far and away the best answer we found and that’s why we strongly recommend that that you vote for its use in the proposed rulemaking so thank you for mentioning the XRF I know we’re gonna have testimony in the next panel about whether XRF really does work on powdered components of fireworks and now I realize we’re gonna hear some testimony

but does anybody have a quick word about the effectiveness of XRF in dealing with powders I’m only vet to the professionals okay thank you very much Thank You commissioner Adler commissioner Robinson thank you I would also like to add that I that as much as almost five years of being a commissioner I’ve heard all the complaints about the ear test and and certainly have had long discussions with mr. Rogers about this I also have always needed to point out to people that that’s just the first test and and then we get to the objective test but at any rate I know that people have been working on this for a long time I know the people in our lab have been working on this for a long time and when we keep in mind that what we’re doing is we’re just using this method to identify the devices that are subject to the to grain limit and it’s a test for the energy of the explosion Mr Houser you come out adamantly against this proposal but have you come up with an alternative you want the ear test to remain I think right now the ear test as it compares to a failure rate of 17 percent is far and away more acceptable than a proposed test which shows a failure rate of 84 percent based on the CPSC’s findings on the metals test I do know that we have had discussions among the members of sound level sound level meter testing explosivity testing performance testing and you know our scientists and and some of the people we talked to tell us that that is a good system we think that is one to be very well considered and and discussed openly so that we could hear opinions again it while we may have opinions for it but what we’re really trying to reconcile is going from a seventeen percent failure rate under the year test which everybody says they want to do away with or come up with a better solution for should be better words but now we’ve proposed something that takes us from seventeen percent to eighty four percent so you’re more objecting than you are coming up with another solution and the 84 percent incidentally I would think would cause people great concern given the fact that that’s what the d-o-t requirement is but I’ll leave that for another day mr Mullen you’ve been you also have vociferously expressed your opinion against this requirement that presumably Jake’s was in agreement with with APA but I wonder if you you or you our organization I know you’re just here as the attorney but have you come up with an alternative to either the ear test or this this test that’s being proposed I don’t I don’t know that Jake’s in particular has I know that Jake’s has been a stakeholder in this and has worked with the AFSL and CPSC staff on the various alternatives but I don’t know that Jake’s has an alternative so my understanding the preference would be to keep the ear test no we think that the ear test is number one we think the ear test was not designed to apply okay whatever your criticisms aren’t I’m sorry to interrupt but I have limited time well what is your alternative because we need to identify the explosive power to identify whether these are devices that fall within the to grain limit so what’s your proposal for the reasons that I talked about earlier we think that that the best proposal is not to focus on the brake charge but to devote resources because it’s not does there’s no nexus to an injury so you’re you’re in favor of no regulation we’re in favor of the existing nonmetal regulation which they’re already regulation right charge now not the ear test there are other regulations on the size and composition of the brake charge that we and what’s the size and composition of the brake charge that you would advocate us going with once in apa 87 – one other other than the metal limitation other than the metal limitation okay thank you Bishnu cake thank you madam chair mr. Jager you still there yes and thank you so I wanted to tell you how much I appreciate your testimony and your fidelity to data and my if I have it correct and please let me know if I don’t your central point is that the Commission has not done the work to properly show a tie between the injuries that are occurring and the proposals that right yes two points one is it exactly that I don’t believe there’s a real danger that interrelated metals and powders I also feel the industry represented on this panel today wants this regulation and it’s because it will increase the cost of entry for startups

and stifle composition and I think you need to be concerned with that as well and so and that last point that you made I wanted to follow up with that and also on the Wii and I think this is related to it where you say at the end of your testimony at least the written testimony that implementing these ill-conceived regulations will hurt small businesses and the consumer certainly as part of our work we not only seek and rely upon robust data that is associated with the injuries but also the economic impacts and so can you elaborate on please what data are you aware of and I have no doubt that there could be speculation or anecdotal information but what data are you aware of that the this proposal would have any and what it what effect it would be the effect it would have on small businesses and consumers what work are you aware of that’s been done to actually lay that out with data obviously on this particular matter there isn’t any study that I’m aware of but I mean I intended pointing directly to the testimony that we heard today that virtually everyone has stated that the regulations supported by ASL excuse me if I got that wrong are more costly and expensive to implement and there was testimony cited that small business will have a hard time you know meeting these standards and this is again it goes back to the you know the standard I get argument if you increase regulations it just increases the cost of entry for startups and I think in the last five or ten years in my personal opinion the introduction of these metals has increased the performance of consumer products a lot and an increased competition phrases have gone down and so these regulations will help limit that limit that kompis that competition but you know as I as I said the AFSL themselves said this is an expensive standard it’s not cheap to be their member the TMT representative is supportive of that they’re a big company they are helping them develop those standards and they want everyone to play ball with those expensive standards because it helps them again control competition it’s just the nature of how regulation works so I apologize they don’t have perhaps what you’re asking for but I still think my comments are valid Shirin and I wasn’t any way suggesting they were no just curious to know what the underlying support for it was if you come across anything or you’re aware of anything that shows that would speak to that more specifically please do take advantage of the record being open and submit that I will thank you madam chair thank you very much at this point this concludes our first panel here this morning and again I want to express my appreciation to all the participants who are here for taking the time and the effort to be here to help us with this rulemaking your opinions greater a matter greatly to us and also to mr. Yeager on the phone thank you for joining us at this point we’re going to take a 15-minute break just to transition to our second panel and again my sincere appreciation to all of you thank you but here

welcome back to this public meeting of the United States Consumer Product

Safety Commission our hearing will now resume just a reminder for the record

this is a public meeting to sizzle to solicit public comment on CPSC s notice of proposed rulemaking regarding an amendment to the fireworks regulations we have two panels we have heard from the first panel and now we are going to hear from our second panel on the second panel we are very pleased to have MS Julie hukman from the American pyrotechnics Association dr. Roger Schneider from Rose sigma associates incorporated mr. Quinn Dodd from the Law Offices of Quinn Dodd mr. Spencer LG national fireworks Association and mr Rick Rosati from bureau veritas thank you all very much for joining us today for taking the time to to share your information and your expertise on this very important issue so with that we will begin with a miss Hickman and her testimony good afternoon madam chairman and commissioners thank you for the opportunity to testify today I am Julie Heckman executive director of the American pyrotechnics Association it is an honor to appear before you to emphasize the Association support of the proposed CPSC consumer fireworks rule the American pyrotechnics Association is the longest serving and principal safety and trade association for the firework industry in fact the APA is celebrating its 70th anniversary this year our members include regulated and licensed manufacturers importers distributors wholesalers retailers suppliers and professional public display companies along with their subsidiaries APA is over 250 member companies are responsible for 90% of the fireworks manufactured imported distributed and professionally displayed in the United States our mission is to encourage safety and the does and use of all types of legal fireworks to promote industry information and to support our members and to promote responsible regulation for the firework industry after extensive discussion and debate among our Board of Directors the APA jointly submitted comments with the American firework Standards Laboratory in support of the notice of proposed rulemaking we did so for two simple reasons first the rule will undoubtedly make consumer fireworks safer and prevent injuries which is a piays primary concerning goal secondly it would adopt many of the requirements set forth in APA standard 87 – 1 these standard for construction classification approval and transportation of fireworks novelties and theatrical pyrotechnics APA standard 87 – 1 is a consensus standard in which firework classifications are assigned based on

the weight and type of chemical composition contained for each specific type of device including specific chemicals that are permissible and also restricted chemicals APH standard 87 – 1 has been incorporated into the US Department of Transportation x’ hazardous materials regulations for over three decades tens of thousands of explosives approvals have been issued by finsih under APA standard 87 – 1 and the vast majority of consumer fireworks approvals are issued under our standard since the inception of APA standard 87 – 1 and its incorporation by reference by d-o-t fine mesh metals have been prohibited and consumer fireworks other than for the purpose of producing an audible effect and that composition has been limited to 130 milligrams madam chairman during last year’s hearing on the notice of proposed rulemaking you expressed some concern that the proposed revisions to a a standard might be inconsistent with the proposed CPSC ban on fine mesh medals and break charges I can assure you while the newly revised version of the standard is still pending formal adoption by d-o-t neither APA standard committee nor finsih had any desire to modify the language adverse charge in any manner that would be inconsistent with the proposed rulemaking the definition of burst charge in the revised standard states any burst charge containing metallic powder such as magnolia or aluminum less than 149 microns in particle size is limited to 130 milligrams further based upon discussions with themes of personnel they intend to adopt the new APA standard and language consistent with the provisions of the NPR it is the strong consensus of the APA board of directors that this proposed ban on metals is responsible workable and an effective replacement for the current CPSC no audible effects standard and test method it is our understanding from discussions and from testing conducted by the AFSL that while aerial fireworks with a high percentage of metal powders certainly those above 5 percent represent a small minority of such products imported to the United States and those that do exist present a real and preventable potential hazard to American consumers in conjunction with the other existing and proposed new safety requirements for aerial fireworks the ban on metal powders is as necessary as it is feasible to implement our members have been frustrated with the current audible effects standard and its implementing tests method the APA board has reviewed concerns that others in the industry have raised regarding the proposed ban including alternatives such as the sound decibel level test and have concluded that limiting metal powders represents the most objective lease variable least complicated least costly means of limiting the energetic or explosive effects of such devices because fine mesh metal powders have been restricted under APA standard 87 – one for burst charges during that past 30 years this is not something new to the factories that produce for export to the US or to the US importers this conclusion is the same as that of the professional and talented CPSC staff who have been exploring some of these alternative options for years if not decades is the XRF test method perfect probably not but it is widely adopted and used and a reasonably reliable test method one that both the CPSC and third-party testing labs have extensive experience with for all these reasons APA strongly supports final adoption of the notice of proposed rulemaking by the CPSC in its entirety with the modifications that were previously mentioned by mr. Rogers at the American fiber standards laboratory I am grateful for your time and attention today and for the opportunity to appear before you thank you thank you very much dr Schneider good afternoon madam chair commissioners as a consultant to the NFA I have been directed to evaluate technical issues raised in the MPR most of my comments today address the results of a short-term investigation of the efficacy of x-ray fluorescence or XRF spectrometry for the accurate and precise detection of quantification of aluminum titanium and magnesium and burst charges the various charges examined were extracted from 100

consumer fireworks aerial devices which included ball and canister shells and shots from multi shot cakes the fireworks were obtained in May 2017 from diverse US retail stores as off-the-shelf items and represents many brands and Chinese manufacturers the fireworks for both AFSL tested and approved the majority in fact and non AFSL tested approved products also tested were surrogate births charges of my design which were very accurately known to contain precise aluminum content in the range of 0 to 500 parts by weight 500 % exceed b0 50% by weight the testing revealed significant problems with XRF analysis of powdered pyrotechnic compositions the XRF spectrometer is very well suited for the determination of elements in solid samples for example if you wanted to know if your gold ring is 14 or 18 karat gold or if it contain gold at all XRF would be well suited however analysis of powdered samples especially those which contain finely divided metals such as pyrotechnic compositions are prone to significant quantitative errors because of particle size in homogeneity and segregation and electrostatic charging effects although the actual powdered metal content of the 100 samples tested is unknown there is little confidence in the values from XRF testing for aluminum titanium and magnesium and burst charges the identical make and model of XRF spectrometer accessories and the current test procedures known to be used by CPSC staff for burst charges analysis were employed in this investigation the instrument employed a thermal Fisher spectrometer augmented with matching portable test stand and the same XRF sample cells and polypropylene cell windows standards used to evaluate the performance of the instrument included high purity solid and powdered metal samples of aluminum titanium and magnesium in strict accordance with CPSC’s most recent test procedures each aerial device or projectile selected from the fireworks was carefully open to expose the mixture of stars and burst charge any of the burst charge seen by I to be contaminated with clay or other non pyrotechnic materials was removed the remaining co-mingled stars and burst charge was transferred to a 100 mesh sieve and screened the burst charge was passed that passed the screening was transferred to a windowed XRF cup then he rated by x RF spectrometry or the elemental analysis no other steps in the sample preparation including drying or homogeneous Asian were employed the 100 burst charges tested provided the following XRF measurement results the aluminum content varied from zero to about 36 percent by weight zero to 36 percent by weight by the XRF analysis 95% of the burst charges had alumina measurements exceeding point one percent by weight 55 exceeded one and 42 percent exceeded five percent by weight this means only five of the 100 burst charges tested showed no aluminum content and remind me to remind you these were the majority AFSL tested and approved items the titanium content varied from zero to 16 percent the magnesium range from zero to 6 percent the aluminum and magnesium and titanium content in the burst charges that were tested is surprisingly high considering the majority of the products as I say our AFSL tested and approved in fact ninety one ninety one of the 100 burst charges were harvested from AFSL tested and approved products the surrogate births charges that I had prepared were also measured by XRF when my standard 5 percent by weight aluminum sample measured in a twenty five point two nine percent it was obvious the powdered state and the sample cup were contributing to the erroneous measurement just as computer monitor screens act as electrostatic dust collectors the powdered aluminum in the surrogate burst charges preferentially clung to the interior surface of a sample cup window and thus presented to the XRF higher than actual percent aluminum content in the mixture because of the nature of powdered pyrotechnic compositions having very various particle sizes subject to segregation and components affected differently by electrostatic charging the use of XRF spectroscopy for the determination of powdered metals and burst charges prone to errors these errors reduce substantially the confidence in the accuracy of the

analyses neither XRF nor the wet chemistry based icp-oes can measure directly the powdered metal content in burst charges both are incapable which is distinguishing between metals and compounds of those very metals in strict accordance with CPSC excuse me the an ability of XRF and icp-oes to distinguish between powdered metals and compounds of those metals is a critical shortcoming because of the ubiquitous presence of metallic compounds that are used in constructing aerial devices such as clays some adhesives some flow agents metallic aluminum and magnesium are also present in star compositions as fine particles with an average particle size of less than 149 microns or 100 mesh and might be present as high as 30% of by weight of the combined star composition these powdered metals contained in stars may be a source of metal contamination in the burst charges shifting gears a bit i would like to address a paragraph which appears in the MPR on page 90 15 it reads in part as the division of chemistry memorandum in the briefing package for this NPR explains a quadratic analysis reveals that a 1% addition of aluminum increases the energy of a device by 3% and that as aluminum content increases the amount of explosive power increases up to 25% aluminum at which point the explosive power begins to diminish the source of these data which are quadratically analyzed comes from the 2011 edition of the chemistry of explosives by Jacqueline Atkin these data pertain to mixtures of TNT and powdered aluminum cast bone mixtures of TNT and aluminum are called trite nulls and are certainly not pyrotechnic compositions for fireworks burst charges TNT functions as an explosive by detonation not deflagration as is the case for pyrotechnic burst charges the conclusions drawn from the analysis of the data are flawed TNT is a molecular explosive with a large negative oxygen balance this means that our insufficient oxygen in the molecule to oxidize the carbon to carbon dioxide and hydrogen to water so as to have a complete combustion to maximize the heat of combustion the aluminum metal added to the TNT competes with the carbon and hydrogen for oxygen in the molecule the mixtures are fuel-rich the increase in the heat of explosion with increasing aluminum content shown in the data are the results of afterburn once the products of the detonation of the TNT are dispersed in the air it is the oxygen in the air which is primarily responsible for the oxidation of the aluminum to aluminum oxide and the attendant exothermicity the volume of gas produced via the TNT alumina mixtures decreases with increasing aluminum percentages because there is less TNT decomposing to produce gas the most common formulation of Tritonal is the 80/20 mixture is no big surprise that their data comports with the highest or the maximum explosive strength of 80 to 18 because of the basis for the collusion conclusion a 1% addition of alumina increases the energy of a device by 3% is the trait in all data its applicability to pyrotechnic Earth’s charges is unjustified lastly I would once again strongly advocate the use of performance testing especially sound level meter endure echt laboratory analyses such as XRF and inductively coupled plasma optical emission spectroscopy for the determination of the hazard level attendant the break of aerial display shells shots and rocket payloads attached to the statement is yet another published paper demonstrating the efficacy of SLM measurements of the blast pressure of explosive pyrotechnic composition these results show that the addition of powdered aluminum smaller than 400 mesh to black powder does not does not significantly increase blast pressures relative of those produced by black powder alone based upon testing which I have personally had been involved of black powder aluminum mixtures as burst charges and reloadable shells I can say with high confidence that the presence of aluminum it’s such burst charges does not significantly increase the blast pressures over those of black powder but but the presence of the aluminum does increase the effectiveness of charges to ignite stars admixed I thank you very much for your time and would be pleased to answer questions thank you very much dr. Schneider mr. Dodd thank you madam chairman commissioners before I begin my test my formal remarks a couple things I want to clarify err or perhaps make clear from our standpoint in I’m by the way I’m Quinn Dodd have losses of me Quinn Dodd I’m also general counsel of American firework standards laboratory and my

opinions obviously reflect that positions of the AFSL first of all I think it’s really important to understand that with respect to both whether or not there might be some future break charged composition that would replace the energetic the highly energetic effects of fine mesh metal powders and secondly that this notion that bigger is bang gear more energetic and so you can have a large device that has only black powder that is more energetic therefore potentially more hazardous than a small device with with high levels of perhaps aluminum powder Bly’s of a key fact that mr. Rogers from AFSL mentioned but if really it’s it’s critical to this discussion which is that there are very significant very severe if you will total composition and racial limits also contained in the staff package so those two must be confuted opt AFSL APA standards those really have to be viewed in concert in my in my view so I think it addresses both this notion that future products might be more dangerous with some formulation or that manufacturers would simply put more composition more black powder composition in those devices second there’s a lot of discussion thus far and it will continue to be a lot a lot more discussion this morning this afternoon on the test method that we anticipate to be used by the CPSC and of course by AFSL should it be adopted by the CPSC to measure the standard which is no fine mesh metals in in break charge composition or whatever the level may be we’ve advocated for two percent obviously the staff position is one percent is sufficient to account for contamination those discussions which I’m not qualified we have a representative for bureau veritas and obviously dr. Rogers has Snyder has has spoken at length about that while those are interesting and and they’re important because eventually we’re going to have to live under a test method to measure the standard which is kind of why we’re here discussing the test method that is the ear test to to replace that it’s not part of the rule it’s important to understand that and so the test method is to come we have spent many hours that is AFSL APA are experts with the lab experts dr. Rogers and others that have spent a lot of time to refine what we think is a very good test method and and we anticipate it might be refined further as it’s implemented in the field but it’s not the issue before the Commission if I may per se it’s the standard itself third and relatedly the pass rate while it’s in interesting we find a pass rate as as as Rick will talk about it at length of somewhere in the neighborhood of 80 to 85 percent other commenters have noted a much lower pass rate it under a theoretical standard and test method of whatever nature that would implement that standard that is a ban on fine mesh metals that’s there’s a debate about that we have a lot more data on our side supporting our interpretation of what’s currently in the market that’s the point as as mr Anderson said eloquently earlier the point is this is not a standard yet and so to to opine or discuss what the what the current pass rate is on a hypothetical standard that is before you is is it like also illustrative but not dispositive finally and this I’m surprised there hasn’t been discussion thus far about this perhaps mr. elves will speak speak to this but in the comments that were submitted written comments to the NPR there was a lot of discussion about perhaps in in some commenters view failure of findings sufficient findings under the FH essay I want to just touch on that but I’m prepared to get into more detail on that for the fullness of the record there are in my view as an attorney and as someone who has examined this quite closely more than adequate findings to support a ban on fine mesh metals and ultimately to support a legal challenge to the test method that would implement that ban or or have established a means of determining compliance with that ban both with respect to and this is to my earlier point that the first finding that there not to be in existence a voluntary standard that adequately addresses the risk and that shows substantial compliance which is why that point that finding has not been highlighted in some of the other comments in my view because their position is there’s a high failure rate which would support making that finding

of course in the first instance our data shows a much higher pass rate to this new standard but nevertheless we also think that finding can be made rather readily by the Commission given some of the precedents in the past notably the the bunkbed standard which had a 90 percent compliance rate but nevertheless that the CPSC adopted a mandatory standard and the second finding of cost benefit ratio that there bear a reasonable relationship I think that’s more than adequately demonstrated are members representing as John Rogers said some in the neighborhood of 85 to 90 percent of the industry a pas members even a higher percentage have had the consensus view is that their cost will be zero or very minimal so the costs we believe is is very low the benefits however on the other side would be very substantial miss Robinson spoke to the injury rates and and the deaths in particular that had been note have been found to be connected with these devices aerial devices particularly reloadable devices over the pass several years mr. Anderson spoke to that as well I’m already way behind so let me get into more formal comments but I wanted to make those points fireworks of course are the most important in my view the most important product safety category regulated by the CPSC with a relatively high number of injuries and unfortunately and especially in recent years an increasing number of deaths that’s inherent to its inherent to the nature of fireworks and it’s inherent to consumer use and misuse of fireworks but as mr. Rogers said we anticipate the AFSL and our standards committee tries to reasonably anticipate misuse of products and address those accordingly with respect to our our our respective AFSL APA safety standards we do limit I mentioned the total composition of aerial devices as well as the composition ratios we also AFSL requires a so-called blowout test where we place the shell upside down as mr. Rogers said there are other things that we do to address the the hazards of fire many firework categories but particularly Ariel and reloadable and again that’s important as as the NPR adopts many of those this establishes a more regular even regulatory playing field brings consistency between CPSC at to to to Julie’s point to consistency between CPSC and DoD mandatory standards and basically modernizes the CPSC standards Rick will speak more to the XRF I won’t belabor that other than to say I have been part and parcel of many of those if not most of those discussions with the lab we have met I would say in total if you put all the time together probably for a solid week with the lab and I know your veritas separately has met on many occasions many other occasions and has many other discussions with the lab about about refining the method whether it’s reliable repeatable verifiable and objective and we are highly confident I personally am highly confident having personal experience XRF and other context that it is and again while it’s not dispositive to your finalization of the rule it’s important to know that we have high confidence in it notwithstanding some of the other testimony one other point I wanted to make quickly in addition to the one versus two percent and I know there’s discussion about that I wanted to also indicate that we are other modification that is a FS ELLs other modification that we have suggested to the rule would be to have a formalized regulatory or other formalized allowance or recognition that there is some inherent variability to X or F testing in any context as there is with any testing method at all but that with respect to X R f in this application you could have some significant variability now whether that’s say 500 parts per million a hundred parts per million whatever it may be relative to the the standard which we’ve advocated for two or twenty thousand parts per million relatively small variants nevertheless we would like there to be some official recognition that should a sample exceed in the testing of CPSC a regulatory level of say 20,000 if the plus or minus is 500 and the reading our reading was within that standard of error we would ask that that be approved thank you madam chairman thank you very much mr elder okay great thank you madam chair commissioners I’m gonna read these comments quickly because this is a hot bench I know there’s a lot of questions

so I will just run through these and then you can throw it all right back at me on behalf of the National fireworks Association thank you for the opportunity to address this NPR which everyone agrees proposes the broadest change the most sweeping changes to firework regulations in decades NFA is a speech especially appreciative to staff for trying to address the universally loathed fear test which is currently used to evaluate the performance the energetics the explosivity arguably the attendant hazards of aerial devices my comments today which not detract from the many positive aspects of the NPR focus on one problematic proposal the metals band and we believe that the composition limits are reasonable and I think that’s a great step forward and we think the prohibitions on chemical certain hazardous chemicals are helpful and so we don’t oppose those but we do have grave concerns with the metal spinning and the metals band as has been pointed out applies to all different sizes and shapes of aerial devices as long as they’re over the to grain limit to grains is a pinch of salt that means everything is subject to this rule aerial devices and this rule is the dispositive deciding factor for businesses about whether their aerial devices are going to fail or whether they are going to pass and this rule takes little devices that are commonly sold a 200 gram cake shot about this big and it says you have 1% powdered metal you are unreasonably hazardous cannot be sold and then it takes a 500 grand cake shot and we’re just going to assume the shots are equivalent sizes so this one’s about twice as big it has no powdered metals it has an in arguably twice as much energetic force twice as much bang and it’s okay to sell that one so that’s that’s just one one one flaw with the rule is that it arbitrarily bans aerial devices with less energetic burst charges than others that it allows but that’s not the main problem with the proposed meddles ban the main problem is that there doesn’t appear to be a safety justification for it and there’s two points that I’ll make about this and the first is that it does not measure explosivity it does not see it does not tell us what the device is what it is capable of doing or what if it or what will happen if it goes off in it near a consumer the failure of the proposed middle span to measure exclusivity is of critical concern to NFA because it ignores the explicity what are sometimes referred to as hybrid powders whistle mixes those have been talked about Joel Anderson from TNC conceded that those are known substances that if you put a cap on a whistle it explodes this isn’t a secret it’s documented those will go undetected by the metal span there are other factors also that can increase the force things such as they lose the wrapping and other other factors that go into making these and all of those go undetected as well so essentially we have turned away from explosivity and we’re just asking is there metal yes or no is it dangerous yes or no while they’re reasonably safe uses of both metallic and hybrid powders to produce search and visual effects there is also the potential of these compositions might be used to make what is referred to in the industry as an overloaded product overloaded products may have burst charges with up to about 30% powdered aluminum as were most the devices that were a niche initially the subject of the audible effects standards m-80s and things of that nature although grossly over inclusive in a number of ways the proposed metals band does manage to catch in its massive trawling net products that were overloaded with compositions with unreasonable amounts of powdered metals but it would be incapable of catching products with purchase charges containing any type of compound or formulation that does not contain powder metals another reason that it’s difficult to see the safety benefits is that we have seen no data to show that it would increase consumer safety while the CPSC does not have to sit back and wait to see whether injuries will arise related to a product aerial devices have been sold on the market for years and data about related injuries is already available in the CPSC s annual injury support reports despite the availability of this data we have seen nothing correlating the metallic content of devices with the injury reports that are referenced in the NPR and the briefing materials likewise we mean see no data comparing the severity or frequency of incidents involving devices that have powdered metal in there burst charges to those that do not

nfa is not even aware of data correlating injuries to burst charges and observes an injuries involving aerial devices appear frequently to be associated with the impact from the lift charges was discussed extensively in the first panel here today there also appears to be no data correlating injury potential with the power of burst charges and CPSC staff recently acknowledged that despite its investigations with whole shell testing it quote could not find a correlation between specific pressure released and injury potential close quote without a correlation between injury potential and energetics of a burst charge it is unclear with a rational basis 0% tolerance for powdered metals especially if we’re allowing other compositions that are equally as powerful as those that we are prohibiting if the assumption is simply that less power will reduce the risk of injury what is to stop CPSC from continuing to dial back energetics until the devices no longer perform we allow 1.75 inch aerial devices currently that’s the limit if more energetics is more danger then why isn’t it 1.5 or 1.25 or one point or one where does the number come from finally CPSC staff in a 2013 status report on fireworks recognize that this quite the significant expansion since 1996 in the market for large aerial devices quote the annual fireworks injury report does not find a statistically significant trend in injuries in that period these conclusions are supported by CPSC’s injury data from the 1999 to 2016 fireworks safety reports which show no increased trend in emergency department treated injuries relative to consumer fireworks imports in fact CPSC’s compiled injury data actually indicate a decrease in the rate of injury and deaths relative to consumer fireworks imports during this time i’ll just comment briefly about the assertion in the first panel that fatalities have increased we have attempted to chart the fatalities and our comments on page 11 have not observed an increase and would be very interested to see that data and to understand that data that was alluded to in the first presentation with injuries and fatalities decreasing relative to imports during a time of increasing popularity of aerial devices it still appears worthwhile to quote and this is from the 2013 fireworks safety standards development project and it was one of the recommendations that it might be to consider the appropriateness of an approach to assume that the current market norms for the level of pressures released upon explosion of shells typical to the marketplace is reasonable and could be used to set guidelines on future pressure maximums thank you for your time and I look forward to your questions thank you very much mr. Rosati thank you madam chair and commissioners I’m Rick Rosati from bureau veritas which administers the testing program for AFSL my remarks this afternoon are going to be brief I primarily wanted to describe in a bit more detail some of the testing and other things that Bureau Veritas is undertaking on behalf of AFSL to better understand the presence and effects of fine mesh metal powders and aerial fireworks and I have my colleague Chuck Rogers who I believe you all know to back me up if Cerie since he has been the primary primarily responsible for the operation of the AFSL Quality Improvement Program first as set forth in the joint AFSL and APA comments to the NPR and as was mentioned the FSA AFSL wanted to get a better handle on how common the presence of metal powders is in aerial firework break charges and so commissioned bv to test some 1600 individual devices currently on the market and found that eighty to ninety percent did not exceed one percent did not exceed one percent level depending on the subcategory and a slightly higher percentage than it did not exceed two percent while these significant findings do stand in stark contrast to the much higher percentage of the devices in excess of one percent metals in the published testing results of the CPSC lab it has to be realized that those CPSC findings were of a relatively small number of targeted samples 64 to be exact in addition BBV conducted testing of reloadable aerial fireworks to determine the force exerted onto a force plate by intentionally igniting various types of reloadable shells upside-down in a

launch tube in order to determine the force exerted by these devices generally bv found that only at metal powder presented percentages above 5 percent was there a statistically significant greater downward force and therefore likely to be hazardous to consumers these results are consistent with the testing results of the CPSC of the overall energetic effects of aerial devices at various metal content percentages and as such devices only generally begin failing the audible effects standard that a metals percentage significantly higher than 2% collectively we believe that these test results and findings support a regulatory metals limit of 2% as part of the final rule finally I’d like to emphasize what has previously been stated about the FOC and reliability of XRF test method to determine metal powders percentages as one of the world’s largest independent test labs we of course have extensive experience in the use of various XRF instruments and believe that it is fully reliable for this purpose while XRF does obviously have some limitations in some applications and while there are some added complications for the use of XRF in this application at an allowable limit of an allowable level of two or even one percent which is twenty thousand and ten thousand parts per million the instrument variability is not expected to be an impediment for the use of such tests test method in aerial break charges such may not be the case at significantly lower or higher allowable limits again we believe this supports the 2% level moreover I would note that we Chuck in particular have met and worked extensively with the CPSC lab and other staff in order to understand their proposed test methodology and to work out any questions or issues with that test method and we likewise feel confident that the test method is reliable and that we can be ready to implement in China and elsewhere on a short order and as mr. Anderson mentioned at no additional cost to AFSL or its members again if you have any any questions in more detail about the administration of the FSL testing program or any other aspect of this issue I or Chuck can address these thank you thank you all very much we will now begin our round of questioning from the Dyess and I will begin though the rounds again the commissioners will have five minutes and we will have as many rounds as necessary in the segment first of all I wanted to thank you for your assurance that the APA standard is not moving away from our proposed rule but moving in the right direction I just wanted to get your opinion on whether or not APA the view on the contamination level what ApS position is on the 2% yea the 2% we are strongly supporting and we that would we like zero of course but seeing enough test data conducted by BV further for the AFSL there are some components that come off the clay there’s going to be some contamination resulting from the stars that are in the device and from the long voyage that these products make from you know China to to the US ports and then to distribution we think there needs to be some type of contamination level just for the shift in the movement of the products we understand the Commission it’s zero looking towards one we think two is is a little bit better and in particular based on the testing by BV we don’t see an energy shift between the 1% and 2% does your standard either implicitly or explicitly talk about the level of contamination and it does not we maintained the same language with regard to the burst charge definition now we also have you know 87 – 1 it’s not just about the burst charge there are quantity limits on various types of devices there are permissible chemicals there are restricted chemicals and all of that data is required to apply for an e X approval under under our standard and so I’m not certain if d-o-t has looked at contamination themselves what is acceptable to them I know they’re they’re very well well aware of this process here with the Commission I know a lot of them are present but when we went through our revision process on 87 – 1 CPSC staff participated as did difensa we’ve been working on this for over eight years thank you very much dr Schneider I understand your testimony was quite elegant well eloquent regarding uh XRF and and the issues you

had in the concerns you had regarding the accuracy of the testing you’re questioning whether it can be measured reliably at all by XRF or wet chemistry tests and am i reflecting your comments accurately yes ma’am and you mentioned the sound level meter eNOS have you considered the testing of the fine metal and what we’ve proposed or in all of your reer research is there an alternative to what we’re proposing or is it just a lost cause and you’re suggesting the the the sound level meter I’d like to address that from two standpoints the first being that when I look at the proposed rulemaking I see a departure in the Consumer Product Safety Commission’s normal operation with regards to rules on consumer fireworks in that heretofore it was almost always a performance requirement you have a fuse burn time of three to nine seconds for example you don’t tell the manufacturer how to achieve that performance specification you look at a variety of others where you get more detail in terms of maximum content or even fuse side resistance to ignition you don’t tell the manufacturers how to achieve that those are design specifications this metals test that is being proposed it’s a big departure from performance to design specification you’re gonna tell the manufacturers that they now have to redesign their burst charges to meet your new rules let me give you an example if tomorrow it was mandated that no motor vehicle shall have the capability of exceeding 80 miles per hour would you go so far as to say that can only be achieved with the internal combustion engine could we also include perhaps a battery-operated electrical vehicles could we have diesel vehicles could we have vehicles that are propelled by propane or natural gas those are all design criteria but every one of those could be designed so as to meet the performance specification of 60 miles per hour or 80 miles per hour or whatever the the maximum is determined to be and so what I would advocate very strongly again is if we are going to have a rule that governs the consumer fireworks industry let the manufacturers meet a performance specification and if the performance specification for an aerial device is that it shall produce a sound level at some particular distance of no greater than so many decibels then the manufacturers can design their products to meet that performance spec regardless of what compositions they choose to do it with thank you very much I apologize I’m Way over my time and we will have another round of questioning Thank You Commissioner Adler thanks very much madam chairman well obviously listening to mr Schneider and mr. Rosati there seems to be a discrepancy in the test results that you have with respect to the use of an XR f machine machine and I’m curious have you compared notes or do you have either of you have an explanation for why you got one result and the other got a different result mr. Rosati if it’s okay may I start with you sure III don’t think we have compared notes or looked at each other’s results we however did perform a correlation between the XRF testing that we did as well as use those results and then compared it against ICP testing or what chemistry so what we did is we took samples that were between I believe 0.5 percent and 2 percent and then sent those samples to the lab for what chemistry testing and the results between the XRF and the ICP were very very close very very comparable of course mr. Schneider saying neither of them is reliable but mr. Schneider if I might come to you can you explain the discrepancy between what mr. Rosati has what your test results were no not knowing the details of the methodology that it was employed that’s very difficult for me to comment upon that issue specifically but I will leave you with this in the testing that we had conducted in which we were looking at

samples of consumer fireworks that had been available in US retailer facilities we do the analysis on those fireworks here in the United States and we find that almost except for five of 100 samples evaluated we had technical levels of aluminum magnesium and titanium particularly focusing on the aluminum and we’ll say is in none of the tests including the surrogate materials that I had prepared using analytical reagent grade chemicals very pure materials none of the measurements by XRF gave a value by the instrumentation that was less than what was present to be known of aluminum content at five percent twenty five percent figure that I cited in my comments is very revealing the XRF is prone to giving results for powdered metal content in pyrotechnics which is erroneously high and what’s interesting is that mr. Rosati said that they compared the XRF to the wet chemistry and they found a high degree of correlation would your critique of that still apply or would it sounds like you’d find that there would be a great discrepancy even between the XRF and the wet chemistry test I’m not familiar with the specifics of their testing so it would be very difficult for me to comment on well if I could switch gears just for one second you’ve heard the staff and you haven’t heard the staff today but you’ve heard panelists talk about the long journey to find a good test and good alternatives and the sound level meter in tests has been explored in depth and yet you you feel using it as a performance test that that would address it and I’m wondering have you seen what the staffs protocol was for doing these tests and do you have an improved approach to that and if so would you mind submitting that for the record I can okay but I would also say sir that SLM sound level meter as extensively employed in Europe the UK Germany Austria Sweden variety of other of the countries Spain and that is used specifically to given us assess this the explosivity of devices that are intended to explode and that testing is considered to be reliable such that it is used commonly now another thing that has occurred over the last I would say decade or perhaps two decades it’s dramatic improvements in some level meters yeah I don’t think the staff would dispute the accuracy and reliability of the testing mechanism what their concern if I recall correctly is setting up an appropriate protocol that would be easy to do and inexpensive because you have to set up some kind of condition that compares favorably to what is actually occurring in the field and that’s where I think the concern arises so if you have some good approach to that I think we’d appreciate hearing it yes I see my time is expired thank you Thank You Commissioner Robinson thank you miss Hackman I have several questions for you about the APA process you told us that this was that this this standard eighty seven point one has been in place for over three decades and we know that do T T has adopted it I’m assuming this was a consensus standard yes it was a consensus standard and the way fireworks originally had to get an approval was they had to go through the Bureau of explosives which was run by the American railroads back in 1970s hummus at the same time you all were the birth of the Commission happened and through that d-o-t said look this is kind of a crazy system for y’all to get approvals why don’t you develop a standard so working with the agency looking at the types of products that were legal in the United States and limiting the chemical compositions so that we could have a standard that was somewhat similar to what Europe the UN does we have a default system and if you meet the criteria of APA standard 87 – 1 and do a thermal stability test you can apply for an ax number through US Department of Transportation at no cost your other option is go to an approved explosive slab spend a lot of money and get your approval issued that way the last time

this standard was revised was 2001 which was incorporated in 2003 so we’ve been working off a 15-year old standard we’ve spent the past eight years working hand in hand with Femmes to take our standard and create three so we have a standalone consumer document stand-alone professional display and standalone theatrical effects we have submitted it for formal and corporation demos looking at it now when that gets done we’ll be able to go in and revise whichever component we need to revise or rather than the whole bucket at once okay and to put it in simplistic terms as I understand it this is a standard for consumer fireworks for purposes of the safety of transporting them from one place to another transportation construction composition and the reason that it’s adopted by d-o-t is DoD has to issue an explosive classification before fireworks can enter commerce and so if you meet the criteria for consumer fireworks you’re going to be classed as one point four G if you exceed certain chemicals and limits you’re going into the professional classification as a 1.3 which requires significantly more regulation I mean it’s almost impossible to get the stuff imported anymore you need ATF licensing etc but most members of the industry look at our 87 – one is kind of their one-stop document that tells them how do i label for CPSC compliance ok what’s the criteria for a consumer product and the statement was made by one of the other witnesses that there is no safety justification for the ban on metal less than 100 mentioned devices with more than two grams of pyrotechnic composition do you agree with that I will say that has been in the document since its origin in 1987 and I would like to thank Dale Miller from the CPSC lab because he was one of the primary authors in terms of coming up with the chemical the chemical data to justify consumer fireworks restrictions I would say to get any X number through 87 – 1 you’re not allowed to have metal powders so it was someone alarming to me when this rulemaking moved forward that I was hearing rumblings from various components of the industry saying um the ban on metals I’m like it’s been in the d-o-t works for 30 years are you telling me nobody is complying so in so from your work with this I know this sounds simplistic but you would say there is a safety justification it is and it’s based on how that material first we would say maybe it wasn’t for the consumer but it was based on the energy that would be confined in that shipping curtain to get that one point for classification and this and just to state the obvious there’s no allowance in the testing with this for contamination at the present time not at the present time now I’m not certain if d-o-t when they do their samplings if they have a provision but it’s not written into our into our regulation and in listening to mr. John Rogers and in talking to people in our lab it’s my understanding that in order to get to 2 percent contamination in spite of all the things you listed as possible contributors that to get to 2 percent you really would have to have a purposeful addition of these mesh metals as opposed to it being accidental from the various possible sources my understanding that correct yeah I am comfortable with that in you I’m someone who likes to cook there’s a difference between a level teaspoon and a heaping teaspoon so you know you have products in China made by hand there’s going to be some variation there’s going to be some variation but there’s definitely a difference between a little bit that was not intended and that extra teaspoon of that gets put in a product okay and you said in your testimony that aerial fireworks for the hyper sentiment metal power certainly those about 5% present a real and preventable potential hazard to American consumers I think pologize that your time is expired sorry Thank You commissioner okay thanks madam chair I wanted to start with dr. Schneider and mr. Rosati if it’s possible I know we talked or if you were here for the earlier panel we talked about industry coming together and trying to have a constructive dialogue I would ask if you would be willing to both do the same on the specific issue of the testing and the reliability of the test method I take mr. Clinton’s point and mr. Dodds point that that’s not the specific issue in front of us but I do think it’s worth addressing at this juncture if we can as part of this effort I don’t know why we would put that off I don’t think it’s helped by that so mr. Rosati would you be willing to sit down and work through the issues Neider that’d be fantastic

and do you want to add something that mr. just one very quick comment that Commissioner every meeting we’ve had with the CPSC that is the lab in killing your veritas with the lab staff NFA has been there of these two gentlemen on either side of me have been there and vice versa every meeting that they have had with their their meeting we’ve been there and they’ve been group discussions with respect to dr. Schneider not knowing how we have bureau veritas what about conducting the testing those are that we they’re confidential reports to us to AFSL we’re part of our formal comments public comments to the record I wanted to make those two points clear great so it sounds like all the information for each to analyze what the other is doing is publicly available from my perspective there have been no secrets no secret formulas latest round of testing they’re beating meaning nFA’s was I think less visible than ours to be honest but we have as with the policy issues at play the technical staff have our technical staff have been absolutely and intimately involved with and open to all parties that want to participate in that and is there any prohibition that you’re aware of dr. Schneider and you having an open discussion with Bureau Veritas or anybody else about the testing no sir that’s great to hear thank you and I wanted to follow up on one of the points you’d made and newsboy I apologize as a non chemist I did my best to follow it it sounded like in essence what you’re saying is that the CPSC staff did not use the proper data set to consider any potential relationship between the metallic content of or the amount of metallic powder in a break charge and it’s explosivity is that correct in a nutshell that the 2011 data that was used is for the purposes that you laid out from a chemical standpoint it just it doesn’t apply yes sir and is there another set that you would use or another methodology to accurately measure what the staff was trying to say yes it could be handled by preparing standards testing those standards against various methodologies perhaps even including laboratory analysis but again I would strongly advocate that we use a performance test totally understand and I think that’s a separate issue because the and I’ll get to that in a second but so is it possible that and I’ve apologized I’m not totally familiar with any additional materials that you submitted if you haven’t submitted those alternative test methods or ways for the staff to make that estimate from metallic amount to explosivity is there additional material you could submit on that point yes sir that’d be great thank you and then to your point about performance standards I don’t think there’s any disagreement I can’t speak my fellow commissioners but my experience at the Commission that performance standards certainly are more desirable I think what’s a confusing factor for us is this is actually an industry standard and as Miss Hickman said it’s been on the books for long time and so this seems to be industry’s preferred method of going about doing this is do you have an explanation for why industry would have chosen a performance standard I’m sorry what you would determine design standard on this topic I don’t know the history of the development of the standard so it’d be difficult for me to comment on the rationale got it and I know mr Ellis is something that has come up in the past when we’ve had discussions with your group do you want to add your perspective as to how this ended up as an industry standard yes I appreciate the question I’d like to make two points first there are many members of NFA who feel that the industry standard does not represent a reasonable approach to protecting consumers from harm of potentially over explosive devices many of those members are members of APA there’s incredible crossover between these organizations and many members of NFA who are members of APA and AFSL Phil very strongly that those organizations are controlled by a handful of very large companies that do not listen to the small companies that is their opinion they say and they’ve told me this that at AFSL and at APA money talks and at NFA the members talk and those are real things that we have heard from our members now the second point I’ll make with respect to be standard is first there has been a misunderstanding and I want to be crystal clear that d-o-t does not necessarily require compliance with 87 – 1 now there is the

option for businesses to spend a lot of money so not a lot do it we’ll acknowledge that to do new explosive testing and to have their consumer product approved with powdered metals in it so if the question is does d-o-t allow for powdered metals in consumer aerial devices absolutely if you go that first route and you do that expensive testing and that’s 49 CFR 173 not five six which allows for laboratory examination and testing so you cannot say simply that d-o-t requires this it’s an optional standard that’s being proposed as a mandatory standard and the second point that I would make is that regardless of whether or not that is a standard by another federal agency for transportation it’s difficult to see how that is reflective on the real tangible potential economic harm to businesses if this rule goes into a into effect is enforced using this testing methodology and we have a lot of devices at levels that Bureau Veritas has acknowledged don’t significantly increase the rate of explosivity even if we were pretending to be measuring explosivity why should those devices fell under this standard and so those are the those are the points I would make thank you thank you we will now begin our second round of questioning mr. LG I wanted to ask you I think you’ve raised two points in your testimony that are of concern to me the first one has to do with the fact that the metals band bluntly applies to different types and sizes of devices and at the end of that paragraph it says it arbitrarily bans aerial devices with less energetic burst charges and other devices that it allows can you comment on that and can you offer an alternative to what we’re talking about here that would in your opinion promote safety I’ll say the question of safety is a difficult one and dr. Rogers certainly talked spoke about performance testing that’s essentially what the air test and if I build a big enough or bad enough or strong enough device without powdered metals the air test will probably pick it up if it makes enough noise so that’s certainly one alternative whether that is through sound level meter testing there was work with the pressure cage test transducers and things like that there’s certainly other things to explore if we want to go the route of having design standards like we have here they just need to be more thought-out I mean why have one that says I can have this little guy he’s not allowed if he’s got 1% this really small device but I can have this giant one it’s just not a it’s just not a very precise approach it’s very blunt and so maybe you take a look at these devices if you want to go to the standards route and you say ok well maybe if you’re looking at these smaller devices it’s ok to have you know a little bit more in there than these bigger devices or you know maybe you take a look at these other formulations right that don’t have metal powders that are gonna go totally undetected by this test and you try to account for those and say well we don’t want those in the hands of consumers so there are options but they need to be explored and you just transition to my second question – and that is in your testimony you talked about there’s published literature recognizing the use of hybrid powders and whistle mixes and that actually did come up in our first panel this morning in particular in the burst charges of aerial devices and so I like to transition them as Heckman because you mentioned lists of prohibited and allowed chemicals in the standard do mice’s or compositions including this whistle breaker are they included in your list of chemicals how do we as a commission anticipate the fact that there will be an end run this morning we heard about the creativity of the folks who are making these devices and so if we ban the metallic level then what happens next that maybe even impacts safely safety more all right two different types of responses the FIR is that our new chemical table in the revised 87 – one does not include any non metals that are currently being used to substitute for fine metals and brake charges so that sort of addresses that Hybrid we’ve had many years of debate about equivalent black powder or non metallic equivalent working with D excuse me so that’s in the prohibited

list that is in the new chemical table which divides prohibited and permissible we did not include nonmetals that are currently being used as substitutes for fine metals and break charges so that would be a restriction that would be a restriction okay so in the list of chemicals that falls on the restriction site yeah and the second thing I wanted to address that that mr. elves brought up is is yes 87 – one is it’s incorporated by reference and d-o-t but it’s a voluntary standard you don’t have to use it so if you have those brake charges with the metal components and you want to go to the explosives lab and pay 8 to 10 grand and have them do the analysis and then submit for any X number you could obtain that I would like to see how many members of the industry got eex numbers for those aerial devices with the fine mesh metals because I’m not aware of the X numbers being issued but perhaps them so could comment and provide data on that most members of the industry rely on using 87 – one because it’s clear if you don’t use this chemical if you stick to these levels of compositions if you do your thermal stability test you certify it you apply you get your ax number for free tens of thousands have been issued at no cost to members of the industry they could still go in if they want the metals it’s just not under our standard you could get to reiax approval thank you very much my time was just about to expire commissioner Adler I must confess I’m a little puzzled by hearing these answers but that I do want to go back just for clarification and I think miss heck you helped to clarify it it’s your assertion that if that we were to abolish the metal span not have a metal span that that d-o-t would not cover d-o-t would not have a standard that applies to that because that has been my understanding up until now that I mistake my questioner and then it’s a few if we get away with the metal span would that not still be covered by dota guys I guess the question and I think you were saying no would not necessarily is the question that for example the CPSC continued with the ear test if it would be something if there were a permissible way under dota 2 no actually that’s not it my question was you said you said you object to the metals ban and therefore my question follow-up would have been but even if we were to do away with the metal span would that not still be covered by the d-o-t rig and I thought I heard you say no it would not necessarily be covered by the d-o-t rig and I’m just trying to get a a factual response to that question okay so do T regulations there are two routes for obtaining the e X number as Julie Hackman mentioned one is to certify – 87 – 1 which prohibits the presence of powdered metals the other is to go through new explosive testing so you could do that which would be expensive and I think Julie makes a valid point that there’s probably not a lot of people that have done that the question though of whether this what’s the likely to be the burden what’s likely to be the the safety benefits we feel that this kind of fall back to do t the do t regulation ignores that and should there be harmonization to the extent possible between these rules well perhaps there should is it possible that if it can be proven through new explosives testing that a small amount of powdered metals wouldn’t increase the transportation hazards over those whatever powdered metal equivalents are allowed that they had kind of the comparable risk levels then I would say that that might be a reasonable way to heart to harmonize them would be to approach Tod and tried to get something that makes sense for different types of formula compositions thank you for that mr. Don I wanted to ask you a question because you said something during your introductory remarks that I found tantalizing I just wanted to follow up on it I think what you were saying I may be miss stating this that we hear this testimony that if you didn’t have metal component then you could have an infinitely or at least a substantially larger explosive charge and you said well that would be in concert with other aspects of the standard that would probably not be likely to happen I was wondering if you could explain that further delighted to sir so under current AF AFSL and APA standards do t

standards there are limits to the two types of arial products that were generally talking about our mine and shell the cakes if you will and reloadable to a products that is you drop in the shell in it and you can do it several times for mine and shell there’s 60 gram gram limits per shell off for a 200 gram limit and I and that’s I thank you for asking that question because the the misstatement again was made that oh you can have a 500 gram cake they call them that’s more explosive than a 200 gram has more energy than a 200 gram cake and how you know but as long as the 200 500 gram doesn’t have metal it could be so that that belies the second part of the standard which would be proposed to be adopted by the CPSC is that individual tube shells are limited relative to the size of the cake so it’s a little bit like hitting a moving target to try to address some of these arguments and then with mine and shell there’s also as with reloadable reloadable shell tubes may not exceed 60 grams per 60 grams of composition per shell and for both the break charge composition not exceed 25% of the overall composition including lift charge composition of those devices for and and for reloadable shell the entire kit may not exceed 400 grams so those are all proposed to be adopted as mandatory standards and they have to be viewed in the same window as the as the metal powder ban my times expired thank you Thank You Commissioner Robinson yeah dr Schneider have a couple of quick questions for you you’ve talked about clay adhesives anti-caking and flow agents may possibly contain metallic compounds that would make XRF testing inaccurate have you measured in any way how much contamination actually could come from those materials I would say after 40 years plus of taking fireworks apart and doing my best to segregate burst charges for example from obvious contaminants including clay and other particulates from casing materials I could say it’s an exceedingly difficult thing to do but when I talk about the contamination I mean of mesh metals in those materials I don’t mean of clay itself but are there mesh metals in clay I think there’s a misunderstanding when we talk about mash were referring to particle size right all right so if we’re gonna talk about a powdered metal as the element elemental aluminum magnesium titanium that differs from those same elements being present in compounds an example would be in clay which has a high percentage of aluminum silicate the aluminum will be detected by our XRF but it’s clearly not there as as a powdered metal okay so I get my questions very basically have you done anything to measure what contribution that could make you’ve heard mr. Rogers talk about what our staff he confirmed what my staff our staff has told me that when they measure the possible contaminants from this it’s less than 1/2 of 1% if it’s none purposeful that’s not my experience with the XRF technology okay and I know you you have you’ve expressed your opinions about XRF technology but do you have an alternative suggestion on how we could detect metallic content if we went forward because you know that our standard at the end that the NPR doesn’t in any way advocate that you have to use in XRF it just talks about the metal content and so the question is do you have enough any ideas on an alternative other than XRF well I think the salient issue is whether or not the presence of metals represents a greater threat in terms okay that’s a good question though and I only want to know if you know of any other alternative the xr2 XRF if you were gonna measure metal content there is no direct measure of metal content okay mister other other than a technique which I employ right and yeah I don’t have time to get into that but we’ve you know that our that our staffs explored this extensive lay button we can talk about that later when my five minutes aren’t running quickly mr. LG you heard your compatriot I forget exactly what your positions are with with the National fireworks Association but Mr Houser talked about

the fact that your members should comply with the d-o-t requirements you agree with that well everybody should comply with what’s on there ix application okay so so you’ve I mean you’ve you’ve raised your objections to it but at the present time that’s been required for more than three decades and your members should be complying with that right now there’s also a question if there’s 2% powdered metal in a burst charge I think all of our members would say nobody put it there intentionally too well but that’s a different question I’m sticking with your members should be complying with the d-o-t requirement that is part of the certification that would that would require them to be at zero mesh metals correct correct especially if they’re AFSL or servers do you have an alternative method that you would suggest to detecting the metal content I’m not a scientist I believe dr. Schneider was about to refer to a technique that he uses vacuum testing I think it might be called okay though do you know of a different method of identifying the devices that are subject to the to grain limit that we should be looking at under the current rule period I mean we’re looking at that you’ve everybody’s got complaints about the ear test it seems but maybe you think we should stick with the ear test I think the ear test is much better reasoned and has a much better safety justification than the current test okay your test I’m at a time so thank you Thank You commissioner okay thank you madam chair do you want to continue your answer I would just say the ear test despite its imperfection similar to XRF that’s not the test that’s not the rule the rule is audible effects and what is the purpose of the rule when the rule is made people were taking m-80s which were 30% powdered aluminum and 70% perchlorate and they were putting them on sticks essentially and the question was asked well what does this device trying to do are we trying to create a visual effect in the sky are we just trying to go bang and so a decision was made that look if what you’re trying to do is just make a bang we don’t really see a justification for that we think that’s an unreasonable risk of injury if you’re trying to create a visual effect that’s okay and that’s what the ear test tries to get at is what is in that device if it’s a whistle comp if it’s a powdered metal why is it in there are we trying to legitimately genuinely create these effects are we trying to ignite stars break them apart create symmetry break the shell into small fragments etc or are we just trying to make a bang and so there’s a lot of reasoning and a good thought process behind that test so so when you step back and you say compare that to the metals band we would say absolutely the ear test is a better test than than a metal span at least the way it’s drafted by the first time I ever heard anyone actually say something positive about the ear test at least from industry the I wanted to follow up mr. el jazz well on one of the points that mr. Dodd had been making response to commissioner Adler’s question aware is that there are additional components to the proposed rule modeled after APA that would address some of the concerns of oak’s explosivity beyond the metals aspect to it do you feel that those are insufficient to address your explosivity concerns whereas you can have non metal explosive powder a power that is bigger than the metal one that proposed rule goes after the composition limits are just irrelevant essentially if you’re comparing powder – powder so whatever powder I’m allowed to have if it’s this amount or that amount they’re going to be devices that have greater amounts and less amounts and this rule is going to take whatever has less and it’s going to say 1% powdered metals – dangerous and it’s going to say whatever has more whistle cop or whatever the infinite creativity thinks up tomorrow that’s ok so absolutely it’s it’s a problem and do you have a way to propose addressing that in the other provisions of the rule so that you feel that there would be parity well the composition limits are important we support those and they help people from pushing the envelope as I mentioned earlier one approach might be to think this through take a look at the different design devices and try to set limits that make sense with respect to those devices and to take a look at the Whistle compositions that this rule permits if we’re going to go forward with it and say well what’s a comparable level of metals that will produce X amount of exclusivity and that’s the limit why target one and not the other of what we’re after is explosivity let’s put a limit on exclusivity and is that information that you would be willing to

share or that NFA would be willing to provide if you explore those areas we would apps we be willing to help shoulder the burden of reaching those standards we would be willing participants and we would encourage the other organizations and welcome their input as well because we don’t think it’s anybody anything anybody could do by themselves so it sounds like though that it’s less about the medals ban per se and more about what you view as being leaving other holes and that if the metal band you be the NFA would be okay with if those other holes were had parity those other areas had parity well you would need to make sure that whatever pyrotechnic composition is allowed in the first charge is sufficient for the devices to perform I’m not an expert on those we would certainly need to have manufacturers as part of that conversation we would be able to tell us what they need for what types of devices okay thank you for that and then I want to close the loop mr Rosati with something that dr. Schneider was saying which is that XRF from his experience cannot distinguish compounds I guess from non compounds is that been your experience there is a concern as he stated in clay there there might be a compound in there that that might you might get a false positive but in these instances we’re only talking about a contamination because in in these instances where we do the testing we separate the powder from any of the other elements so if there is any of the clay compound that contaminated the metal it would be a very small percentage you know hence you know the contamination from the factory from the stars and whatever you know other reason the manufacturers have stated there could be some contamination again it’s the feeling of a lab that it shouldn’t be over 1 or 2 percent for sure thank you for that thank you madam chair thank you I believe we will have probably an abbreviated but one last round of questions for all of our panelists today mr. edge can you just go over what you’ve already talked to us you mentioned that there were two paths to get this X number and one was compliance with APA 87 – one but then you mentioned a secondary a way to do that can you and then I’ll ask the segment for a response to that but just for clarification what’s standard if you took that second route what standard applies and you may have mentioned it and I may have list it so the first method is laboratory examination and testing that’s 49 CFR 1 73.5 6 under this method an application for e^x classification approval must be supported by examination and class recommendation from ADOT approved explosive laboratory can also be a foreign competent or authority we won’t get into that upon submission of the application if the testing supports classification as a one point four G firework any X number can be obtained regardless of whether the device complies with APA standard 87 dash 1 thank you miss Eckman do you have anything to add to that well that that provisions been in there and it’s often used for the explosive labs for things like products articles pyrotechnic which didn’t have a category in 87 – 1 so you had to go through the explosives lab by and large the vast majority if not 98% I like to say 100 but I don’t know there’s probably a couple straggling e^x approvals issued out there by that provision that you go through the lab vast majority of Industry is relying on 87 – 1 and that you know has been developed with technical input technical consultant as well as industry manufacturers Pro safety people you know the APA we have a 70 year reputation for promoting safety on the line here we make certain at what’s in 87 – 1 is going to be good for the public as well as for the industry as well as for transportation the provisions have been negotiated with d-o-t if we don’t like a limit they set on us they’ll tell us bring it forward in an R&D program and prove to us that your classification you know that that product can be classified as we sat here and discussed I thought hey what Spencer said is maybe we should approach them on an R&D project and let them look at them the metals let him look at it because I can tell you right now in the revisions – 87 – 1 we did not change we did not change the burst charge requirements we kept it as us thank you very much madam chairman can I add a few comments please recently I participated in consumer fireworks aerial device testing at a competent authority this Authority this facility used blast gauges for the

measurement of the we’ll call it the explosivity the energy output of these various consumer fireworks devices they didn’t take apart the product there was no laboratory exercise involving XRF for icp-oes or any other technology that is what we call wet chemistry they measured the article as it would be offered for transportation at the finished product that was field tested blast measurements were conducted and based upon that they were then in a position to advocate to the Department of Transportation through the new explosives provision that this should be either a 1.4 G firework or a 1.3 G firework as the case may be if you look at 49 CFR and the provisions that are offered for the one point four and three explosives as fireworks with a compatibility group of G you do not see consumer firework you see firework one point four G firework if the competent authority through performance testing determines the energy output of a device which is intended to be offered for transportation as being within the norms for a 1.4 G classification they will recommend to the d-o-t as such for final approval and the issuance of a 1.4 G hazard classification and compatibility code so this does business here where we have to engage in some kind of a laboratory exercise where we are taking apart product subjecting it to a variety of chemical analyses involving sophisticated instrumentation is not necessary to assess the energy output and the potential hazard of a product that is finished form and would be available for transportation and distribution within a commerce thank you very much my time has expired commissioner Adler thank you very much mr. algae I didn’t see in your testimony any comment on the costs associated with XRF testing and I’m wondering if NFA has explored that whether you accept mr Rosati and AFS Elle’s contention that the XRF testing would be reasonable and probably not ad costs or is that something that you take issue with well they say there’s no such thing as a free lunch economics 101 somebody’s buying a forty thousand dollar device training somebody to use it calibrating it I know dr. Schneider services and evaluating it we’re very expensive somebody’s paying for it I can’t speak as to the contract between B V and AFSL is this something that has already been baked into their contract because they’ve seen this coming and anticipated it to go forward will they be able to read OC eight their contract if this rule doesn’t go forth I don’t know but I know we have members that aren’t members of AFSL and who want to use different testing organizations and they are very very concerned about the cost and availability of the testing itself especially if for confidence they need to go to icp-oes or whatever vacuum testing that dr. Rogers is talking about mr. Dodd I saw you raised your hand at one point you wanted to respond to a comment that somebody was making I thought I’d give you that opportunity right now and in mr. Rosati feel free to respond make the point that I think okay so Rosati will validate which is B D is looked at again under the ASL program well two points first of all there is XRF testing currently that the CPSC is well aware of and that relates to the presence of toxic heavy metals particularly in children’s products and toys those tests and I happen to represent one of the larger testing labs are typically in the range of 15 to 20 dollars a pop that is exactly what BV told us when we asked that question that is to be compared with the elimination of three steps that we currently take under the a facility cell members have to do whatever they do to certify their product but under our program we visually inspect we have to cut open the sample we float it in water we visually inspect it for the presence of metals then we put the powder in the water light heavy metals to deploy to the top after that we do the steel ball test then we take it out into the lot and do the sound test all those combined BV has recently informed us are significantly more expensive in toto then is an X RF test even under the conditions under which they’d have to do

which is transport the XRF instruments out to the field is that accurate that is accurate and you know transporting that the instrument someone’s going out there anyway to do the other tests so they they take them x RF handheld XRF and and do the test and and Quinn is correct you know between ten and fifteen dollars would be for an individual X RF test so that in lieu of doing the the ear test and again the training and the things of that sort are all there as well even if we’re doing the ear test right we have to Train technicians on you know what does boom mean and what does bang mean and poof and puff so there’s really in the end the the cost is a wash and probably cheaper to use x RF then then other methods a couple other things you know both x RF and what chemistry ICP are already accepted methods by the CPSC so you know the discussion or the argument about them not being acceptable or reliable I don’t think holds water and one other comment that I wanted to make previously is that during the testing that we did do we also prepared specific samples with known common percentages of of metals in them and then did XRF and ICP testing against those samples as well and again both sets of tests correlated with with the other testing that we did thank you very much Thank You Commissioner Robinson mr Rosati I about a couple of questions for you I’m assuming that if one wanted to control the mesh metal in the break charges that you could do that in the supply chain you wouldn’t have to wait until the finished firework you could but but again then you know there’s the other the other aspects of a contamination potentially if you test or inspect in the field are you certain when the inspector walks out of the factory that they’re not doing something different or making products somewhere else and in fact the same supply chain issues that are concerned and everything worse right okay um you you testified that the babies tested over 1,600 individual devices currently on the market and found eighty to ninety percent did not exceed a two percent level do you know what percent of the devices did not exceed one percent it was and again I would look to either Quinn or Chuck to give me the exact numbers but between 80 and 90 percent the dependent on the type of subcategory did not exceed 80 to 90 percent and then even a higher level didn’t exceed two percent that’s what I thought there was a typo in your report so it’s a higher level didn’t you see two percent but eighty to nine eighty to ninety percent didn’t exceed one percent okay would do you not have any reason to know if XRF variability would contribute to a one percent difference in contamination we didn’t notice that level of of variability in the correlation testing that we did no and you and you in answer to commissioner Adler’s questions just said that the XRF is already an accepted method of testing for CPSC and I I just assume that you’re familiar with the CPSC testing and certification requirements that may be met with the XRF that’s correct testing and are you aware of any issues concerning repeatability or reliability of the XRF and meeting these other CPSC requirements not at this point I have nothing further Thanks Thank You commissioner okay thank you madam chair I’m just gonna leave it where miss Eckman left it with cooking analogy I think we’re all ready for a heaping or a leveled lunch so I have no more questions thank you thank you very much to my colleagues may I offer another continent or two you’re it acceptable I’d like to address a couple of issues first of all with regard to the testing that’s currently done by the Consumer Product Safety Commission with x-ray fluorescence yes this is done and it’s done typically with solid state samples I know there’s testing that is being done to determine if there’s lead for example in the polymers that are used for rubber Ducky’s that is not a powdered pyrotechnic composition the the form of the material makes a big difference in the accuracy and confidence that you can apply to an XRF analysis that is a main focus of our testing and our conclusions next when we conducted the XRF testing that was the focus of my comments the 100 samples

that were gleaned from retail stores of first charges that was conducted with representatives of bv AFSL and the APA present and after all was done we were given assurances that the testing the modality the procedures the equipment that was employed was in their opinion correct and consistent with theirs so if there’s a disparity in the data that results from these two different tests I would say it probably has more to do with the nature of the samples that were provided for the testing ours came from off the shelf retail product imported in the United States from Chinese manufacturers across the board next item has to do then I’m sorry thank you good I have 10 seconds of equal time you madam chairman you made the two most salient codes I’ve heard today which I think sum up the arguments of the other side are one that there’s that the audible effect standard does not apply to aerial products today the second is that quote there’s no relationship between kinetic energy and injury I think that kind of sums up where the other side is thank you so I guess I still fifty three seconds left I guess I would only ask dr. Schneider and miss again mr. Rosati repeat what I said earlier we take at face value I take your face value the results that both of you came up with and I don’t think anyone’s questioning that it what is important though is that if there’s a way to maybe not even look at prior results but design a test together get the same samples have confidence in the protocols and see where it ends up and then report that back to us if that’s something that you’re willing to do I just think it’s an important enough issue and you obviously have all have a lot to offer that it would be a shame not to figure out a way both on this particular issue and on the larger standards development generally for everybody to put their heads together including CPSC staff and see where we end up thank you madam chair thank you all very much this concludes our hearing and the proposed rule I want to thank again all of the panelists who are here for your time and panel number one as well for your time and attention to this matter we do value your opinions greatly I also want to just remind everyone the record will be open for a week if you have additional comment or any further information you want to disclose to the agency it will be come up a formal part of the record so you are free to do that it’s important that our agency here’s your your import your your input and get your input and what you are considering and how you are looking at these issues and there’s no question that our mission of safety is more effectively executed with your knowledge and your expertise I also want to acknowledge some of the staff here this morning I acknowledge the office of the secretary and again thank you for all of your help today I also want to acknowledge our acting executive director Dewayne ray and our acting general counsel petty policy thank you for your assistance today and I want to thank as always John McGovern who is behind the scenes who does his magic and makes all of this possible so thank you to John this concludes the public meeting of the Consumer Product Safety Commission thank you all very much I think that’s yours