SKOKOMISH
FIREWORKS SALES AND SAFETY ORDINANCE
Adopted by
Resolution No. 97-27 (April 28, 1997)
Amended by
Resolution No. 98-44 (April 27, 1998)
Amended by
Resolution No. 99-44 (May 20, 1999)
Amended by
Resolution No. 00-44 (May 18, 2000)
Amended by
Resolution No. 01-58 (May 9, 2001)
Amended by
Resolution No. 01-137 (December 12, 2001)
Amended by
Resolution No. 04-78 (June 23, 2004)
Amended by
Resolution No. 06-40 (April 5, 2006)
Amended by
Resolution No. 08-047 (April 16, 2008)
Amended by
Resolution No. 09-025 (February 4, 2009)
TABLE OF
CONTENTS
GENERAL PROVISIONS
4.03.001 Title
4.03.002 Authority and Declaration of Purpose
4.03.003 Jurisdiction
4.03.004 No Waiver of Immunity
4.03.005 Severability
4.03.006 Definitions
FIREWORKS COMMITTEE
4.03.007 Authority
and Duty of Fireworks Committee
4.03.008 Adoption
of Annual Regulations
4.03.009 Notice
of Regulations
WHOLESALE FIREWORKS PERMITS
AND SALES
4.03.010 Authorized Wholesalers
4.03.011 Wholesale Fireworks Permits and Fees
4.03.012 Violations
RETAIL FIREWORKS SALES AND
PERMITS
4.03.013 Authorized Retailers
4.03.014 Retail Fireworks Sales Permits
4.03.015 Retail Fireworks Stands: Operation
and Sales
4.03.016 Tribal Fireworks Stands
VIOLATIONS AND PENALTIES
4.03.017 Prohibited
Fireworks
4.03.018 Unlawful
Discharge of Fireworks
4.03.019 Other
Prohibitions
4.03.020 Civil Fines
4.03.021 Civil
Forfeitures
4.03.022 Revocation/Suspension
of Permit
ENFORCEMENT
4.03.023 Tribal Law
Enforcement Officers
PENALTY
SCHEDULE
General Provisions
4.03.001 Title
This Ordinance shall be known as
the Skokomish Fireworks Sales and Safety Ordinance.
4.03.002 Authority and Declaration of Purpose
(a) Authority. This Skokomish Fireworks Sales and Safety
Ordinance is enacted pursuant to the inherent sovereign authority of the
Skokomish Indian Tribe in accordance with the Treaty of Point No Point, the
Constitution of the Skokomish Indian Tribe and applicable federal law. Pursuant to Article V of the Constitution,
the Skokomish Tribal Council has the authority to enact laws and ordinances to
license and regulate the conduct of business activities, and to impose taxes on
all persons and property within the Tribe’s jurisdiction.
(b) Purpose. The Skokomish Tribal Council, as the
governing body of the Skokomish Indian Tribe, recognizes the need to enhance
and strengthen the development of the Reservation, supporting community values
and goals for achieving complete self-determination and self-governance as a
separate sovereign Nation. As a guide to
interpretation and application, the purposes of this Ordinance is as follows:
(1) To prevent the
sale of illegal and unsafe fireworks on the Skokomish Indian Reservation and
other property within the Tribe’s jurisdiction;
(2) To promote the
safety and welfare of the Skokomish community members by regulating the conduct
of Wholesale fireworks sales within the Reservation and of Retail fireworks
sales along the heavily traveled highways on the Reservation;
(3) To generate
revenue for operation of the Skokomish tribal government, including the
administration and enforcement of this Ordinance; and
(4) To assert, to the
exclusion of state and local regulatory authorities, the Tribe’s authority over
the conduct of trade in, and the use and disposition of, fireworks on the
Reservation.
4.03.003 Jurisdiction
(a) General Jurisdiction.
The provisions of this Ordinance shall apply to the fullest
extent of the sovereign jurisdiction of the Skokomish Indian Tribe as
authorized by the Tribe’s Constitution, the Treaty of Point No Point and
applicable federal law.
(b) Civil Jurisdiction.
Except as
otherwise provided herein, the
4.03.004 No
Waiver of Immunity
Nothing in
this Ordinance is intended or shall be construed as a waiver of the sovereign
immunity of the Skokomish Indian Tribe.
The Fireworks Committee as described in this Ordinance may not waive or
limit the sovereign immunity of the Tribe.
4.03.005 Severability
If any
provision or application of this Ordinance is determined by review to in
invalid, such adjudication shall not be held to render ineffectual the
remaining portions of this Ordinance or to render such provisions inapplicable
to other persons or circumstances.
4.03.006 Definitions
(a) Where a term is
not defined in this Ordinance, it shall be given its ordinary meaning.
(b) Terms used in this
Ordinance, and regulations adopted under it shall have the following meaning
given to them in this section, except where specifically defined or the context
clearly indicates otherwise:
(1) “Enrolled Tribal
Member” or “Tribal Member” means a
person who is an enrolled member of the Skokomish Indian Tribe.
(2) “Fireworks” means
any device containing a combustible or explosive substance intended to produce
a visible or audible combustion, explosion, deflagration, or detonation, but
shall not include firearms.
(3) “Fireworks Stand”
means a location or establishment at which fireworks are offered for Retail
sale only and which contains a countertop-type buffer separating the customer
from Retailer;
(4) “Immediate Family
Member” means a member of the family unit comprised of the husband or wife
(whether by legal or common law marriage), mother, father, brother, sister,
and/or children (whether natural or adopted).
(5) “Permittee” means
a person awarded permission by the Skokomish Indian Tribe to sell Fireworks at Retail
or Wholesale.
(6) “Reservation”
means the Skokomish Indian Reservation established pursuant to the Treaty of
Point No Point of January 26, 1855, 12 Stat. 933, and Executive Order of
February 25, 1874 and includes all lands within the exterior boundaries
thereof, whether held in fee, restricted or trust status.
(7) “Retail” means the
sale of Fireworks to ultimate consumers, as opposed to sale for further
distribution or processing.
(8) “
(9) “Tribal Manager”
means the Skokomish Tribal Manager hired by the Tribal Council pursuant to
Article VI of the Constitution and who is responsible for the execution of
tribal laws and policies and the management of all tribal business.
(10) “Other property
within the Tribe’s jurisdiction” means other areas of territory and
jurisdiction as defined in Article I, Section 2 of the Constitution of the
Skokomish Indian Tribe.
(11) “Wholesale” means
the sale of Fireworks to a Retailer for resale, and not to th ultimate consumer.
Fireworks Committee
4.03.007 Authority and Duty of Fireworks
Committee
(a) Fireworks
Committee Established. There is
hereby established the Skokomish Fireworks Committee (hereinafter “Fireworks
Committee”).
(b) Role of
Fireworks Committee. The Fireworks
Committee shall act in a regulatory and advisory capacity to the Skokomish
Tribal Council and shall carry out
any other Fireworks related duties assigned to it by the Tribal Council or this
Ordinance. The Fireworks Committee hasauthority
as follows:
(1) Promulgate
regulations for all aspects of fireworks sales and safety pursuant to this
Ordinance, including but not limited to:
(i) recommending the time and place where sale of
Fireworks is lawful;
(ii) recommending and defining the types of sales
allowed for those Fireworks not already defined in this Ordinance;
(iii) recommending the time, place and manner in
which it will be lawful to use, ignite, or discharge Fireworks;
(iv) recommending additional requirements and
conditions of the issuance and use of retail and wholesale fireworks permits;
and
(v) regulating all other aspects of Fireworks
sales which the Tribal Council refers to the Fireworks Committee.
(2) To monitor and inspect, in conjunction with
Tribal Law Enforcement, all Wholesale and Retail Fireworks Stands within the
Reservation for compliance with this Ordinance and all regulations adopted
under it.
4.03.008 Adoption
of Annual Regulations
The
Fireworks Committee shall prepare proposed annual regulations. These proposed annual regulations shall cover
all aspects of tribal Fireworks sales to be consistent with this
Ordinance. In preparing the proposed
annual regulations, the Fireworks Committee shall:
(a) Consider all recommendations
made by Committee Members and other Tribal Members; and
(b) Submit the
proposed annual regulations to the Tribal Council with a written resolution
approving and authorizing the adoption of the annual regulations to be
effective on dates specified therein.
4.03.009 Notice
of Regulations
Copies of
all Fireworks regulations shall be provided to the Tribal Council as soon as
possible. Copies of all adopted regulations shall be prominently posted within
the Reservation and shall be available to Tribal Members upon request.
Wholesale Fireworks Permits and
Sales
4.03.010 Authorized
Wholesalers
No person
shall make Wholesale sales of Fireworks within the Reservation without a valid
annual Wholesale Fireworks Permit issued by the Skokomish Indian Tribe.
4.03.011 Wholesale
Fireworks Permits and Fees
Any person
who wishes to make Wholesale sales on the Reservation must apply each year for
a tribal Wholesale Fireworks Permit.
Applications must be submitted in writing to the Tribal Manager. Approval of all applications shall be within
the discretion of the Tribal Manager.
All permit fees may be changed by the annual Fireworks Sales and Safety
Regulations as approved by the Tribal Council. There shall be two types of Wholesale
Fireworks Permits:
(a) Mobile Wholesale
Permit (Fee of $500)
A Mobile Wholesale permit shall be approved only for the sale
of Fireworks to approved Retail Fireworks owners/operators or their designated
employee within the Reservation. Prior
to each Wholesale purchase, the Wholesaler shall require each Retail Fireworks
owner/operator or their designated employee to present a valid “Buying
Authorization Card.” A mobile Wholesaler
must vacate the Reservation after each sale.
(b) On-Site Permit
(Fee of $750)
An on-site Wholesale permit shall be approved only for sale
of Fireworks to approved Retail Fireworks owners/operators or their designated
employee within the Reservation. Prior
to each Wholesale purchase, the Wholesaler shall require each Retail Fireworks
owner/operator or their designated employee to present a valid “Buying
Authorization Card.” An on-site Wholesaler
must be located at least 300 feet from any residence, Fireworks Stand or other
structure.
(c) Payment of Fees
All Wholesale Firework Permit applications must be approved
and permit fees paid prior to sales on the Reservation. NO DEFERRAL PAYMENTS ON WHOLESALE FIREWORKS
PERMITS AND FEES IS AUTHORIZED.
(d) Terms of Permit
Each Wholesale Fireworks Permit shall state such terms and conditions necessary to achieve the
purposes of this Ordinance.
(e) Display of
Permit
Every Wholesale Fireworks Permit issued pursuant to this
Ordinance shall be prominently displayed by the Wholesaler when conducting
business within the Reservation.
4.03.012 Violations
Any person
who makes or attempts to make Wholesale sales of Fireworks within the
Reservation in violation of this Ordinance shall be subject to the following
penalties:
(a) Civil Fine: No less than $500, but no more than $5000 per
violation.
(b) Civil
Forfeiture: pursuant to section
4.03.021 of this Ordinance.
(c) Revocation/Suspension
of Permit: pursuant to section
4.03.022 of this Ordinance.
Retail Fireworks Sales and Permits
4.03.013 Authorized
Retailers
No person
shall make Retail sales of Fireworks within the Reservation or other property
within the Tribe’s jurisdiction without a valid annual Retail Fireworks Sales
Permit issued by the Skokomish Indian Tribe.
4.03.014 Retail
Fireworks Sales Permits
Retail
Fireworks Sales Permits and Buying Authorization Cards shall be issued only to
enrolled Skokomish Tribal members and shall be approved only for the sale of Fireworks
from Retail Fireworks Stands on the Reservation or other property within the
Tribe’s jurisdiction. WHOLESALE
PURCHASES FOR AND/OR RETAIL SALES OF FIREWORKS FROM OTHER THAN A FIREWORKS STAND
IS STRICTLY PROHIBITED. Each
applicant must apply each year for a tribal Retail Fireworks Sales Permit and
Buying Authorization Card (replacement charge of $10.00 per lost, misplaced or
damaged permit or card).
(a) Qualifications
for Retail Fireworks Sales Permit.
To qualify for a tribal Retail Fireworks Sales Permit, an
applicant must submit to the Tribal Manager the written “Fireworks Retail Sales
Permit Application” which shows to applicant has the following qualifications:
(1) Enrolled member of
the Skokomish Indian Tribe;
(2) At least eighteen
(18) years of age; and
(3) Property within
Reservation on which Fireworks Stand will be located must be held in trust or
must be Indian-owned fee property.
Property outside the Reservation must be held in trust. The following evidence shall be provided:
(A) Ownership of the
property;
(B) Statement of
consent of owner(s); or
(C) Other legal
authorization to occupy the property.
(b) Action on
Permit Application
Within ten (10) days of receipt of an application, the Tribal
Manager shall determine whether an applicant qualifies for a Retail Fireworks
Sales Permit as provided in sub-section (a) above. The Tribal Manager shall either approve and
issue the permit to a qualified applicant, or shall notify the applicant in
writing of the reason(s) for denial of the permit. All decisions of the Tribal Manager may be
appealed to the Tribal Council. The
decision of the Tribal Council shall be final.
(c) Permit Fees
All permit, lease and cleaning deposit fees may be changed by
the annual Fireworks Sales and Safety Regulations as approved by the Tribal
Council:
(1)
Generally
All Retail Fireworks Stand owners/operators will be required
to submit the following fees with their application:
(A) $110.00 Retail
Fireworks Sales permit fee on all Stands, regardless of size; and
(B) An additional permit fee will be assessed:
(i)
$100.00 for Stands measuring 21’-40’ x
11’-20’ x 11’-20’; and
(ii) $200.00 for Stands measuring 41’-60’ x 21’-30
x 21’-30; and
(iii)
$300.00 for Stands measuring 61’-80’ x
31’-40 x 31’-40’; and
(iv)
Fees in increments of $100.00 for larger
Stands at a rate commensurate with
the increases described herein; and
(C) All applicants must pay a $100.00 refundable
cleaning deposit prior to opening of
their Fireworks Stand. Ten dollars is
designated from each permit sold to be held in
a separate account for future use by the Fireworks Committee for upcoming seasons.
(2)
Tribally-owned property
The Tribe may authorize Fireworks Stands to be located on
tribally-owned property as follows:
(A) Fireworks Stand
owners/operators will be selected by lottery.
An application and a $20.00 non-refundable fee are required at the time
enrolled tribal members submit their names to be selected for a lottery
slot. Fees collected will be designated
for clearing property that can be utilized for leasing to tribal members who
would otherwise have no place for their Fireworks business.
(B)
(C) A fee for portable
toilets will be incorporated into the lease fees established by the annual Fireworks
Sales and Safety Regulations as approved by the Tribal Council.
(3) NO
DEFERRAL PAYMENTS ON RETAIL FIREWORKS PERMITS AND FEES IS AUTHORIZED.
(d) Terms of Permit. Each Retail Fireworks Sales Permit shall state such terms and conditions
necessary to achieve the purposes of this Ordinance. Provided,
each Retail Fireworks Sales Permit shall only entitle the Permittee to operate
one Fireworks Stand:
(1) Of the length
designated within the permit;
(2) At the location
designated within the permit; and
(3) For the period
established each year in the regulations.
(e) Transfer of
Permit Prohibited. The Retail
Fireworks Sales Permit may not be transferred to any other person or applied to
a Stand at a location other than the one designated within the permit.
(f) Refunds.
(1) Permit fees paid
at the time of permit application shall be promptly refunded if the Tribal
Manager determines that an applicant does not qualify for a Retail Fireworks
Sales Permit.
(2) Cleaning deposit
refunds shall be refunded as follows:
(A) A Fireworks Stand
owner/operator must collect and properly dispose of all garbage and debris in
and around the Fireworks Stand:
(i) Within 10 days after the close of the summer Fireworks
season; and
(ii) Within 10 days after the close of the winter Fireworks
season,
(B) Following the ten
(10) day periods referenced in sub-section (A), the Fireworks Committee, Law
Enforcement Officers and/or tribal staff will inspect each Fireworks Stand for
compliance:
(i) Upon a determination of compliance with
sub-section (A)(i), the cleaning deposit shall be refunded within thirty (30)
days following the close of the summer Fireworks season.
(ii) Upon a determination of failure to comply
with sub-section (A)(i), the cleaning deposit shall be forfeited to the
Tribe. In addition, failure to comply
with sub-section (A)(i) may result in other penalties and fines contained in Violations
and Penalties below, and the Tribal Manager may deny future permits to the Fireworks
Stand owner/operator for a period up to three years.
(iii)
Upon a determination of failure to comply with sub-section (A)(ii), in addition
to other penalties and fines contained within Violations and Penalties
below, the Tribal Manager may deny future permits to the Fireworks Stand
owner/operator for a period up to three years.
(g)
Non-Payment of Fines as Grounds for Denial of Permit
No permit shall be issued to an applicant who has outstanding
fines imposed by the
4.03.015 Retail Fireworks Stands: Operations
and Sales
(a) Display of
Permit. Every Retail Fireworks Sales
Permit issued pursuant to this Ordinance shall be prominently displayed at the Fireworks
Stand authorized by the permit.
(b) Employees. NO
PERSON UNDER THE AGE OF SIXTEEN (16) shall be authorized to assist in
the operation of a Fireworks Stand, except in the presence of immediate adult
supervision. At the time of application for a Retail Fireworks Sales Permit, a Fireworks
Stand owner/operator must list all employees or persons that will be working in
their Stands who are not enrolled tribal members. Fireworks Stand owners/operators are only
authorized to employ or to allow sales of Fireworks to be made by a person who
is either:
(1) An enrolled
Skokomish tribal member; or a member of another federally recognized Indian
Tribe or Alaskan Native;
(2) An immediate
family member of the Fireworks Stand owner/operator.
(3) ANY PERSON WHO HAS
VOLUNTARILY RELINQUISHED HIS OR HER MEMBERSHIP IN THE SKOKOMISH INDIAN TRIBE is
prohibited from selling Fireworks on the Skokomish Reservation under any and
all circumstances.
(c) Safety
Precautions/Restrictions.
(1) Every Fireworks Stand
owner/operator shall keep, in a location which can be easily reached by
employees, either a fire extinguisher of at least ten (10) pound dry weight, or
a source and quantity of water which can be immediately and effectively used
for fire prevention and control.
(2) No Fireworks Stands
shall be located within fifty (50) feet of a gasoline, oil, propane or
flammable service or storage facility and/or within 300 (300) feet of any
tribal business and/or within fifty (50) feet of any other tribal building or
structure. No open flame shall be
located within three hundred (300) feet of the Twin Totems Grocery and
Convenience Store without the written permission of the Skokomish Tribal
Manager.
(3) Every Fireworks Stand
owner/operator shall display in a prominent place a sign which bears the
following warning:
“IT IS UNLAWFUL TO DISCHARGE FIREWORKS WITHIN FIFTY (50) FEET OF THIS STAND. VIOLATORS SHALL BE SUBJECT TO CIVIL FINES OF
UP TO $1000.00 PER VIOLATION. S.T.C.
4.03.018(a).”
(4) Every Fireworks Stand
owner/operator shall display in a prominent place a sign which bears the
following warning:
“NO SMOKING OR OPEN FLAME IS PERMITTED WITHIN FIFTY (50) FEET OF THIS STAND. VIOLATORS SHALL BE SUBJECT TO CIVIL FINES OF
UP TO $1000.00 PER VIOLATION. S.T.C.
4.03.019."
(d) Access and
Parking. All Fireworks Stand
owners/operators shall ensure that safe, off-street automobile access and
parking is available for all customers and employees of the Fireworks Stand.
(e) Sign Removal. Within ten (10) days after the close of the
summer Fireworks season and within ten (10) days after the close of the winter Fireworks
season, a Fireworks Stand owner/operator must remove all flags, signs,
billboards or any other advertisement materials promoting the sale of Fireworks
at any location within the Reservation, including any location on or adjacent
to the Fireworks Stand.
(1) If such flags,
signs, billboards or other advertisement materials are not removed within the
ten (10) day period, they shall be deemed a public nuisance by the Tribal
Manager in violation of this Ordinance and may be disposed of by tribal law
enforcement officers and/or tribal staff without further notice to, and at the
expense of (including, but not limited to, the forfeiture of the $50.00
cleaning deposit pursuant to section 4.03.031(f) of this Ordinance) the Fireworks
Stand owner/operator.
(2) Provided further, if a Fireworks Stand
owner/operator is found to be in violation of this section, in addition to the
civil fines and penalties contained within VIOLATIONS AND PENALTIES below, the
Tribal Manager may deny future permits to the Fireworks Stand owner/operator
and/or any immediate family member for the sale of Fireworks at the location
deemed to be a public nuisance for a period up to three years.
4.03.016 Tribal Fireworks Stands
(a) No Permits or
Fees Required. In addition to licensing
individual Fireworks Stand operators, the Tribal Council may authorize the
operation of one or more Stands wholly owned and operated by the Tribe. Each tribal Stand shall be operated in
accordance with the provisions of this Ordinance. Provided,
tribally owned and operated Stands shall not be subject to the permit and fee
provisions of this Ordinance.
(b) Operation. The Tribal Fireworks Stands shall be operated
by a manager appointed by the Tribal Council and compensated at a rate set by
the Tribal Council. The manager must be
an enrolled member of the Tribe. The
manager may employ as many persons as are needed for operation of the Stands,
so long as all employees are enrolled members of the Tribe.
(c) Revenues. Revenues from sales at tribal Fireworks Stands
shall be used first for paying wages and business expenses. All remaining revenues shall be declared
surplus and deposited in the tribal general fund.
Violations and Penalties
4.03.017 Prohibited Fireworks
It shall be
unlawful for any person within the Tribe’s jurisdiction to transport, possess,
discharge, or offer for sale any Fireworks which are prohibited by the
Hazardous Substances Act, 15 U.S.C. 1261, et
seq., the Consumer Products Safety Act, 15 U.S.C. 2051, et seq., and which are banned or do not
meet the requirements contained in the regulations promulgated by the Consumer
Products Safety Commission, including 16 C.F.R. Part 1507 (Fireworks Devices -
copy attached), 16 C.F.R. Part 1500.17 (Banned Hazardous Substances - copy attached),
and all other applicable regulations, hereby incorporated by this reference.
4.03.018 Unlawful Discharge of Fireworks
(a) It shall be
unlawful for any person to discharge or to permit another person to discharge Fireworks
within fifty (50) feet of a Fireworks Stand.
(b) It shall be
unlawful for any person to discharge Fireworks after 12:00 Midnight or earlier
than 6:00 a.m. on the Reservation. On Holidays
and weekends, Fireworks may be discharged no earlier than 6:00 a.m. and no
later than 2:00 a.m.
4.03.019 Other Prohibitions
(a) Smoking Prohibited. It shall be unlawful for any person to smoke
or to permit another person to smoke within fifty (50) feet of a Fireworks Stand.
(b) Open Flame
Prohibited. It shall be unlawful for
any person to have an open flame or fire, or to permit another person to have
an open flame or fire, within fifty (50) feet of a Fireworks Stand.
4.03.020 Civil Fines
Except as
otherwise specifically provided for, any person who violates any provision of
this Ordinance may be assessed a civil fine for each separate violation of not
less than $50.00 and not more than $1000.00.
4.03.021 Civil Forfeitures
Any Fireworks
located on the Reservation or other property within the Tribe’s jurisdiction
which are being held for commercial sale in violation of this Ordinance, or
which are prohibited by section
4.03.017 of this Ordinance, are subject to civil forfeiture as provided in the
Civil Rules of the Skokomish Tribal Court.
Such Fireworks may be seized by tribal law enforcement officers before
filing of a forfeiture complaint.
4.03.022 Revocation/Suspension of Permit
Except as
otherwise specifically provided for:
(a) Revocation of
Permit. If a person who has been
issued a Wholesale or Retail Fireworks Sales Permit pursuant to this Ordinance
is found to be in violation of the Ordinance by the Skokomish Tribal Court, the
Tribal Manager may revoke the permit and may further deny the same person
annual permits for up to three years from the date of the conviction of the civil
offense.
(b) Suspension of
Permit. If probable cause exists to
believe a person is in violation of section 4.03.017 of this Ordinance, the
Tribal Manager may suspend the Permittee’s Wholesale or Retail Fireworks Sales
Permit, prohibiting all operations and sales by the Permittee pending a hearing
before the
Enforcement
4.03.023 Tribal Law Enforcement Officers
(a) Skokomish
Department of Public Safety. Law
enforcement officers employed by the Skokomish Department of Public Safety are
hereby authorized to enforce the provisions of this Ordinance. Tribal law enforcement officers shall have
authority to:
(1) Inspect Wholesale
(on-site and mobile) dealers and Retail Fireworks Stands to determine
compliance with the provisions of this Ordinance;
(2) Serve notices and
legal process;
(3) Issue civil
citations for violations of this Ordinance;
(4) Seize Fireworks in
accordance with the provisions of this Ordinance; and
(5) Otherwise enforce
administrative decisions of tribal officials and/or orders of the
16 CFR
COMMERCIAL PRACTICES
CHAPTER II
CONSUMER PRODUCT SAFETY
COMMISSION
SUBCHAPTER C -- FEDERAL
HAZARDOUS SUBSTANCES ACT REGULATIONS
PART
1507 -- FIREWORKS DEVICES
Sec.
1507.1 Scope.
1507.2 Prohibited chemicals.
1507.3 Fuses.
1507.4 Bases.
1507.5 Pyrotechnic leakage.
1507.6 Burnout and blowout.
1507.7 Handles and spikes.
1507.8 Wheel devices.
1507.9 Toy smoke devices and flitter devices.
1507.10 Rockets with sticks.
1507.11 Party poppers.
1507.12 Multiple-tube Fireworks devices.
Authority:
15 U.S.C. 1261-1262, 2079(d); 21 U.S.C. 371(e).
Source:
41 FR 22935, June 8, 1976, unless otherwise noted.
Cross
Reference: See also 1500.14(b)(7); 1500.17(a) (3), (8) and (9); 1500.83(a)(27)
and 1500.85(a)(2).
§1507.1 Scope.
This part 1507 prescribes requirements for those fireworks devices
(other than firecrackers) not otherwise banned under the act. Any fireworks
device (other than firecrackers) which fails to conform to applicable
requirements is a banned hazardous substance and is prohibited from the
channels of interstate commerce. Any fireworks device not otherwise banned
under the act shall not be a banned hazardous substance by virtue of the fact
that there are no applicable requirements prescribed herein.
§1507.2 Prohibited
chemicals.
Fireworks devices shall not contain any of the following
chemicals:
(a) Arsenic sulfide, arsenates, or arsenites.
(b) Boron.
(c) Chlorates, except:
(1) In colored smoke mixtures in which an equal or greater amount
of sodium bicarbonate is included.
(2) In caps and party poppers.
(3) In those small items (such as ground spinners) wherein the
total powder content does not exceed 4 grams of which not greater than 15
percent (or 600 milligrams) is potassium, sodium, or barium chlorate.
(d) Gallates or gallic acid.
(e) Magnesium (magnesium/aluminum alloys, called magnalium, are
permitted).
(f) Mercury salts.
(g) Phosphorus (red or white). Except that red phosphorus is
permissible in caps and party poppers.
(h) Picrates or picric acid.
(i) Thiocyanates.
(j) Titanium, except in particle size greater than 100-mesh.
(k) Zirconium.
§1507.3 Fuses.
(a) Fireworks devices that require a fuse shall:
(1) Utilize only a fuse that has been treated or coated in such
manner as to reduce the possibility of side ignition. Devices such as ground
spinners that require a restricted orifice for proper thrust and contain less
than 6 grams of pyrotechnic composition are exempted from §1507.3(a)(1).
(2) Utilize only a fuse which will burn at least 3 seconds but not
more than 9 seconds before ignition of the device.
(b) The fuse shall be securely attached so that it will support
either the weight of the fireworks device plus 8 ounces of dead weight or
double the weight of the device, whether is less, without separation from the
fireworks device.
[41 FR 22935, June 8, 1976, as amended at 61 FR 67200, Dec. 20,
1996; 61 FR 67200, Dec. 20, 1996]
§1507.4 Bases.
The base or bottom of fireworks devices that are operated in a standing
upright position shall have the minimum horizontal dimensions or the diameter
of the base equal to at least one-third of the height of the device including
any base or cap affixed thereto.
§1507.5 Pyrotechnic leakage.
The pyrotechnic chamber in fireworks devices shall be sealed in a
manner that prevents leakage of the pyrotechnic composition during shipping,
handling, and normal operation.
§1507.6 Burnout and
blowout.
The pyrotechnic chamber in fireworks devices shall be constructed
in a manner to allow functioning in a normal manner without burnout or blowout.
§1507.7 Handles and
spikes.
(a) Fireworks devices which are intended to be hand-held and are
so labeled shall incorporate a handle at least 4 inches in length (see
§1500.14(b)(7)). Handles shall remain firmly attached during transportation,
handling and full operation of the device, or shall consist of an integral
section of the device at least four inches below the pyrotechnic chamber.
(b) Spikes provided with fireworks devices shall protrude at least
2 inches from the base of the device and shall have a blunt tip not less than
1/8-inch in diameter of 1/8-inch square.
§1507.8 Wheel devices.
Drivers in fireworks devices commonly known as "wheels"
shall be securely attached to the device so that they will not come loose in
transportation, handling, and normal operation. Wheel devices intended to
operate in a fixed location shall be designed in such a manner that the axle remains
attached to the device during normal operation.
§1507.9 Toy smoke devices
and flitter devices.
(a) Toy smoke devices shall be so constructed that they will
neither burst nor produce external flame (excluding the fuse and firstfire upon
ignition) during normal operation.
(b) Toy smoke devices and flitter devices shall not be of such
color and configuration so as to be confused with banned fireworks such as M-80
salutes, silver salutes, or cherry bombs.
(c) Toy smoke devices shall not incorporate plastic as an exterior
material if the pyrotechnic composition comes in direct contact with the
plastic.
§1507.10 Rockets with
sticks.
Rockets with sticks (including skyrockets and bottle rockets)
shall utilize a straight and rigid stick to provide a direct and stable flight.
Such sticks shall remain straight and rigid and attached to the driver so as to
prevent the stick from being damaged or detached during transportation,
handling, and normal operation.
§1507.11 Party poppers.
Party poppers (also known by other names such as "Champagne
Party Poppers," and "Party Surprise Poppers,") shall not contain
more than 0.25 grains of pyrotechnic composition. Such devices may contain soft
paper or cloth inserts provided any such inserts do not ignite during normal
operation.
§1507.12 Multiple-tube
fireworks devices.
(a) Application. Multiple-tube mine and shell fireworks devices
with any tube measuring 1.5 inches (3.8 cm) or more in inside diameter and
subject to §1500.17(a)(12) of this part shall not tip over when subjected to
the tip-angle test described in this section.
(b) Testing procedure. The device shall be placed on a smooth
surface that can be inclined at 60 degrees from the horizontal, as shown in
Figure 1 of this section. The height and width of the inclined plane (not
including the portion of the plane below the mechanical stop) shall be at least
1 inch (2.54 cm) greater than the largest dimension of the base of the device
to be tested. The test shall be conducted on a smooth, hard surface that is horizontal
as measured by a spirit level or equivalent instrument. The mechanical stop on
the inclined plane shall be 1/16 inches (1.6 mm) in height and perpendicular to
the inclined plane. The stop shall be positioned parallel to the bottom edge of
the inclined plane and so that no portion of the device to be tested or its
base touches the horizontal surface. The device shall not tip over when the
plane is inclined at 60-degrees from the horizontal. The procedure shall be
repeated for each edge of the device.
FIGURE
1 TO §1507.12
16 CFR - CHAPTER II - PART 1500
§ 1500.17 Banned hazardous substances.
(a) Under the authority of section 2(q)(1)(B) of the act, the
Commission declares as banned hazardous substances the following articles
because they possess such a degree or nature of hazard that adequate cautionary
labeling cannot be written and the public health and safety can be served only
by keeping such articles out of interstate commerce:
(1) Mixtures that are intended primarily for application to interior
masonry walls, floors, etc., as a water repellant treatment and that are
"extremely flammable" within the meaning of section 2(1) of the act
(repeated in § 1500.3(b)(10)).
(2) Carbon tetrachloride and mixtures containing it (including
carbon tetrachloride and mixtures containing it used in fire extinguishers),
excluding unavoidable manufacturing residues of carbon tetrachloride in other
chemicals that under reasonably foreseeable conditions of use do not result in
an atmospheric concentration of carbon tetrachloride greater than 10 parts per
million.
(3) Fireworks devices intended to produce audible effects
(including but not limited to cherry bombs, M-80 salutes, silver salutes, and
other large firecrackers, aerial bombs, and other fireworks designed to produce
audible effects, and including kits and components intended to produce such
fireworks) if the audible effect is produced by a charge of more than 2 grains
of pyrotechnic composition; except that this provision shall not apply to such
fireworks devices if all of the following conditions are met:
(i) Such fireworks devices are distributed to farmers, ranchers,
or growers through a wildlife management program administered by the U.S.
Department of the Interior (or by equivalent State or local government
agencies); and
(ii) Such distribution is in response to a written application
describing the wildlife management problem that requires use of such devices,
is of a quantity no greater than required to control the problem described, and
is where other means of control are unavailable or inadequate. (See also § 1500.14(b)(7); § 1500.17(a) (8) and (9); § 1500.83(a)(27); § 1500.85(a)(2); and part 1507).
(4) Liquid drain cleaners containing 10 percent or more by weight
of sodium and/or potassium hydroxide; except that this subparagraph shall not
apply to such liquid drain cleaners if packaged in accordance with a standard
for special packaging of such articles promulgated under the Poison Prevention
Packaging Act of 1970 (Pub. L. 91-601, 84 Stat. 1670-74 (15 U.S.C. 1471-76)).
(5) Products containing soluble cyanide salts, excluding
unavoidable manufacturing residues of cyanide salts in other chemicals that
under reasonable and foreseeable conditions of use will not result in a
concentration of cyanide greater than 25 parts per million.
(6)(i) Any paint or other similar surface-coating material
intended, or packaged in a form suitable, for use in or around the household
that:
(A) Is shipped in interstate commerce after December 31, 1973, and
contains lead compounds of which the lead content (calculated as the metal) is
in excess of 0.06 percent of the total weight of the contained solids or dried
paint film; or
(B) Is shipped in interstate commerce after December 31, 1972, and
contains lead compounds of which the lead content (calculated as the metal) is
in excess of 0.5 percent of the total weight of the contained solids or dried
paint film.
(C) [Reserved]
(D) The provisions of paragraph (a)(6)(i) of this section do not
apply to artists' paints and related materials.
(ii) Any toy or other article intended for use by children that:
(A) Is shipped in interstate commerce after December 31, 1973, and
bears any paint or other similar surface-coating material containing lead
compounds of which the lead content (calculated as the metal) is in excess of
0.06 percent of the total weight of the contained solids or dried paint film;
or
(B) Is shipped in interstate commerce after December 31, 1972, and
bears any paint or other similar surface-coating material containing lead
compounds of which the lead content (calculated as the metal) is in excess of
0.5 percent of the total weight of the contained solids or dried paint film.
(iii) Since the Commission has issued comprehensive regulations
for lead-containing paint and certain consumer products bearing such paint at
the 0.06 percent level under the Consumer Product Safety Act (see 16 CFR part
1303), paragraphs (i) and (ii) of §
1500.17(a)(6) are revoked as to the subject products manufactured after
February 27, 1978.
Note: The effective date of paragraphs (a)(6)(i)(A) and
(a)(6)(ii)(A) was stayed by an order published in the Federal Register of
August 10, 1972 (37 FR 16078).
(7) General-use garments containing asbestos (other than garments
having a bona fide application for personal protection against thermal injury
and so constructed that the asbestos fibers will not become airborne under
reasonably foreseeable conditions of use).
(8) Firecrackers designed to produce audible effects, if the
audible effect is produced by a charge of more than 50 milligrams (.772 grains)
of pyrotechnic composition (not including firecrackers included as components
of a rocket), aerial bombs, and devices that may be confused with candy or
other foods, such as "dragon eggs," and "cracker balls"
(also known as "ball-type caps"), and including kits and components
intended to produce such fireworks except such devices which meet all of the
following conditions:
(i) The fireworks devices are distributed to farmers, ranchers, or
growers through a wildlife management program administered by the U.S.
Department of Interior (or by equivalent State or local governmental agencies);
and
(ii) Such distribution is in response to a written application
describing the wildlife management problem that requires use of such devices,
is of a quantity no greater than required to control the problem described, and
is where other means of control is unavailable or inadequate. (See also § 1500.17(a) (3) and (9)).
(9) All fireworks devices, other than firecrackers, including kits
and components intended to produce such fireworks, not otherwise banned under
the act, that do not comply with the applicable requirements of part 1507 of
this chapter, except fireworks devices which meet all the following conditions:
(i) The fireworks devices are distributed to farmers, ranchers, or
growers through a wildlife management program administered by the U.S.
Department of the Interior (or by equivalent State or local government
agencies); and
(ii) Such distribution is in response to a written application
describing the wildlife management problem that requires use of such devices,
is of a quantity no greater than required to control the problem described, and
is where other means of control is unavailable or inadequate. (See also § 1500.17(a) (3) and (8)).
(10) Self-pressurized products intended or suitable for household
use that contain vinyl chloride monomer as an ingredient or in the propellant
manufactured or imported on or after October 7, 1974. (See also § 1500.17(a) (3) and (8)).
(11)(i) Reloadable tube aerial shell fireworks devices that use
shells larger than 1.75 inches in outer diameter and that are imported on or
after October 8, 1991.
(ii) Findings. (A) General. In order to issue a rule under section
2(q)(1) of the Federal Hazardous Substances Act ("FHSA"), 15 U.S.C.
1261(q)(1), classifying a substance or article as a banned hazardous substance,
the FHSA requires the Commission to make certain findings and to include these
findings in the regulation. These findings are discussed below.
(B) Voluntary standard. Although a voluntary standard relating to
the risk of injury associated with reloadable tube aerial shells has been
adopted, it has not been implemented. Thus, the Commission is not required to
make findings covering the likelihood that the voluntary standard would result
in elimination or adequate reduction of the risk of injury or that there would
be substantial compliance with the voluntary standard.
(C) Relationship of benefits to costs. The Commission estimates
that the removal of large reloadable shells from the market is likely to
virtually eliminate the number of associated injuries, with only a slight
offsetting increase in the number of injuries due to the use of substitute
Class C fireworks products available to consumers. The estimated net benefits
range from essentially zero to close to $1 million annually. The annual costs
of a ban are estimated to be very low. Included are potential costs to foreign
manufacturers and
(D)
(1) Regarding design or performance criteria, the Commission considered
requirements similar to those stated in the voluntary standard of the American
Fireworks standards Laboratory ("AFSL"). However, such criteria may
increase the cost of the product and would not address all factors involved in
the incidents. Further, concerns exist about the feasibility of criteria and
quality control.
(2) Regarding additional or alternative labeling, the users'
perception and experience concerning the amount of time available to get away
may lead them to disregard an inconsistent warning. There are no data to
suggest that a significant number, if any, incidents would be avoided if large
reloadable shells carried more detailed labels or instructions than they
currently do. It cannot be concluded that potential benefits would be greater
than zero.
(3) The Commission considered including reloadable shells that are
1.75 inches or less in outer diameter and have the "equivalent explosive
power" of larger shells. A kinetic energy level of 70 joules was
considered to evaluate explosive power. However, any potential benefits are
uncertain since the Commission concluded that a clear relation between kinetic
energy and injury potential could not be established. Also, costs could be
slightly higher.
(4) The Commission also considered imposing no mandatory
requirements on large reloadable shells and relying instead on the AFSL
voluntary standard. However, it is uncertain whether any net benefits to
consumers would result from this alternative, since the level of injury
reduction could be near zero if, as is probable, some firms chose not to
conform with some or all of the AFSL standard.
(12)(i) Large multiple-tube devices. Multiple-tube mine and shell
fireworks devices that first enter commerce or are imported on or after March
26, 1997, that have any tube measuring 1.5 inches (3.8 cm) or more in inner
diameter, and that have a minimum tip angle less than 60 degrees when tested in
accordance with the procedure of §
1507.12 of this part.
(ii) Findings -- (A) General. In order to issue a rule under the
section 2(q)(1) of the FHSA, 15 U.S.C. 1261(q)(1), classifying a substance or
article as a banned hazardous substance, the FHSA requires the Commission to
make certain findings and to include these in the regulation. These findings
are discussed in paragraphs (a)(12)(ii) (B) through (D) of this section.
(B) Voluntary standard. (1) One alternative to the tip-angle
requirement that the Commission considered is to take no mandatory action, and
to depend on a voluntary standard. The American Fireworks Safety Laboratory
(AFSL) has a standard for mines and shells intended to address the potential
tip-over hazard associated with multiple-tube fireworks devices. AFSL's
Voluntary standard for Mines and Shells -- Single or Multiple Shot requires
that large multiple-tube devices not tip over (except as the result of the last
shot) when shot on a 2-inch thick medium-density foam pad. The Commission
cannot conclude that AFSL's existing voluntary standard adequately reduces the
risk of injury from large devices that tip over while functioning. The
Commission's tests using polyurethane foam did not find sufficient agreement
between performance on foam and on grass. No other data are available to show
that this dynamic test is reliable.
(2) In addition, even if the AFSL standard is effective, the
Commission does not believe that compliance with the standard will be adequate.
AFSL reports that it has been testing in accordance with its standard since
January 1994. However, the results of CPSC's compliance testing indicate that
multiple-tube devices still tip over while functioning. In fiscal year 1994,
all 24 imported devices the Commission tested, and 1 of 8 domestic devices,
tipped over while functioning. In fiscal year 1995, 22 of 27 imported devices
and 1 of 5 domestic devices tipped over during Commission testing. The
Commission finds that there is unlikely to be substantial compliance with the
voluntary standard applicable to multiple-tube devices.
(C) Relationship of benefits to costs. The Commission estimates
that the 60-degree tip-angle standard will eliminate the unreasonable tip-over
risk posed by these devices. This will provide benefits of saving one life
about every 3 years, and preventing an unknown number of nonfatal injuries. The
annual cost of modifying affected devices is estimated to be between $1.5
million and $2.7 million. The Commission finds that the benefits from the
regulation bear a reasonable relationship to its costs.
(D)
[38 FR 27012, Sept. 27, 1973, as amended at 38 FR 27514, Oct. 4,
1973; 38 FR 31520, Nov. 15, 1973; 39 FR 30114, Aug. 21, 1974; 39 FR 42903, Dec.
9, 1974; 41 FR 22935, June 8, 1976; 42 FR 44202, Sept. 1, 1977; 43 FR 12310,
Mar. 24, 1978; 48 FR 16, Jan. 3, 1983; 56 FR 37837, Aug. 9, 1991; 61 FR 13095,
Mar. 26, 1996; 61 FR 18245, Apr. 25, 1996]
Amendment(s) published April 18, 2003, in 68 FR 19147
Effective Date(s) October 15, 2003
3. In § 1500.17, add new
paragraphs (a)(13) and (b) to read as follows:
§ 1500.17 Banned hazardous substances.
(a) * * *
(13)(i) Candles made with metal-cored wicks. Candles manufactured
or imported on or after October 15, 2003, made with metal-cored candlewicks,
unless:
(A) The metal core of each candlewick has a lead content
(calculated as the metal) of not more than 0.06 percent of the total weight of
the metal core; and
(B) Each outer container or wrapper in which candles subject to
paragraph (a)(13)(i)(A) of this section are shipped, including each outer
container or wrapper in which such candles are distributed to a Retail outlet,
is labeled "Conforms to 16 CFR 1500.17(a)(13)." For purposes of this
paragraph (B), the term "outer container or wrapper" does not include
the immediate container in which candle(s) is/are intended to be displayed at Retail
or during use in the home, unless that container or wrapper is also the only
container or wrapper in which the candle(s) is/are shipped to a Retailer.
(ii) Metal-cored candlewicks. Metal-cored candlewicks manufactured
or imported on or after October 15, 2003, unless:
(A) The metal core of each candlewick has a lead content
(calculated as the metal) of not more than 0.06 percent of the total weight of
the metal core; and
(B) Each outer container or wrapper in which candlewicks subject
to paragraph (a)(13)(ii)(A) of this section is shipped, including each outer
container or wrapper of a shipment distributed to a Retail outlet, is labeled
"Conforms to 16 CFR 1500.17(a)(13)." For purposes of this paragraph
(B), the term "outer container or wrapper" does not include the
immediate container in which candlewick(s) is/are intended to be displayed or
sold at Retail, unless that container or wrapper is also the only container or
wrapper in which the candlewick(s) is/are shipped to a Retailer.
(iii) Findings -- (A) General. To issue a rule under section
2(q)(1) of the FHSA, 15 U.S.C. 1261(q)(1), classifying a substance or article
as a banned hazardous substance, the Commission must make certain findings and
include them in the regulation. These findings are discussed in paragraphs
(a)(13)(iii)(B) through (D) of this section.
(B) Voluntary Standard. One alternative to the ban that the
Commission considered is to take no mandatory action, and to depend on a
voluntary standard. One organization has a standard for candlewicks intended to
address the potential for substantial illness posed by such wicks and candles
with such wicks. The Commission has found that the standard is technically
unsound and that substantial compliance with it is unlikely. Furthermore, there
is no evidence that the standard has been adopted and implemented by candlewick
or candle manufacturers.
(C) Relationship of Benefits to Costs. The Commission estimates
that the ban will reduce the potential for exposure to lead and resulting lead
poisoning because there is no "safe" level of lead in the blood. The
annual cost to the candle/wick industry of the ban is estimated by the Commission
to be in the range of $100,000 to $300,000. On a percentage basis these costs
represent only 0.005 to 0.015 percent of the overall value of candle shipments
in 2000, which was approximately $2 billion. Accordingly, the Commission finds
that the benefits from the regulation bear a reasonable relationship to its
costs.
(D)
(b) [Reserved].