Report of the state fire marshal’s office on the sale and use of consumer fireworks in maine




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STATE OF MAINE

126th LEGISLATURE

FIRST REGULAR SESSION

REPORT OF THE STATE FIRE MARSHAL’S OFFICE ON THE SALE and USE OF CONSUMER FIREWORKS IN MAINE
Joint Standing Committee on Criminal Justice and Public Safety

MARCH 14, 2013

MEMBERS:

SEN. Stan Gerzofsky, CHAIR

SEN. David E. Dutremble

SEN. Gary E. Plummer
Staff: REP. Mark N. Dion, Chair

Anna Broome, Curtis Bentley, Policy Analysts Rep. Michel A Lajoie

Suzanne Armstrong, Committee Clerk Rep. Bryan T. Kaenrath

Rep. Alan M. Casavant

Committee on Criminal Justice and Public Safety Rep. Timothy I. Marks

c/o Legislative Information Rep. Joshua R. Plante

100 State House Station Rep. Ricky D. Long

Augusta, Maine 04333 Rep. Thomas M. Tyler

Rep. Jethro D. Pease

REP. Corey S. Wilson

Prepared by Richard E. Taylor, Senior Research and Planning Analyst

Office of the Maine State Fire Marshal


Table of Contents
Page
Executive Summary …………………………………………………………………. 3
Introduction ………………………………………………………………………….. 3 - 4
Licensing ……………………………………………………………………………… 4 - 5
Town Ordinances, Phone and Direct Assistance to Maine Residents,

Law Enforcement, Fire and Local Policy Makers ………………………………… 5
Consumer Fireworks Related Injuries and Fires ………………………….. 5 - 7
Summary and Recommendations………………………………………………….... 8
Appendix 1: PL, Chapter 416, LD 83, An Act to Legalize the Sale, Possession, and Use of Fireworks
Appendix 2: Chapter 36, Consumer Fireworks Sales License (Rule)


Appendix 3: Application for License to Sell Consumer Fireworks & Checklist

Appendix 4: Municipal Prohibitions and Restrictions (as of March 13, 2013)
Appendix 5: Sample Municipal Sales Permit
Appendix 6: Injury Reporting Forms

EXECUTIVE SUMMARY
The use, possession or sale of Consumer Fireworks had been prohibited in Maine for decades prior to the passage of Chapter 416, LD 83 “An Act to Legalize the Sale, Possession and Use of Fireworks” during the first session of the 125th Maine Legislature. The law took effect on January 1, 2012.
In 2012 Office of the Fire Marshal proposed and adopted rules facilitating the licensure of 16 consumer fireworks retail facilities in various locations around Maine. The Maine Medical Association and Maine Hospital Association provided reports on 19 consumer fireworks related injuries and so far 11 fires have been reported by Maine’s fire departments in addition to 38 fires reported by Maine Forestry. During the same period 56 Maine municipalities passed ordinances restricting, prohibiting or permitting the sale or use of consumer fireworks in their jurisdictions. The 56 ordinances vary considerably in terms of how and what consumer fireworks are addressed. Leading up to and during 2012 the Fire Marshal’s Office fielded hundreds of phone calls from those interested in opening a store or consumers and law enforcement officials curious as to just what “consumer fireworks” were and how they could be used. In addition to working with Maine’s medical community to examine the relationship between consumer fireworks and injury, the Fire Marshal’s Office received grant funding to put together a public service announcement on using these products safely. The Fire Marshal’s Office created a new section of its web page devoted entirely to consumer fireworks in Maine.
This report examines the development and implementation of a licensing program in addition to the distribution, issuance and oversight of licensed stores in Maine. Also, and in accordance with Chapter 416, this report includes details on the fireworks related injury, fire, property damage, and other consumer fireworks related issues in addition to municipal efforts to restrict and prohibit use and sale.

INTRODUCTION
Chapter 416, “An Act to Legalize the Sale, Possession and Use of Fireworks” (Appendix 1) essentially legalized sale, possession and use of consumer fireworks in Maine. The use of 1.3g explosives (fireworks) and other forms of explosives regulated by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATFE) and the Department of Transportation as well as the State of Maine, have been allowed for use by Maine state licensed pyrotechnicians and stored in approved locations for years. Consumer fireworks, or 1.4g fireworks are not regulated by ATFE but rather the Consumer Products Safety Commission and to a lesser degree the Department of Transportation in addition to the states where consumer fireworks are legal.
Chapter 416 allowed adults twenty-one and older to use consumer (1.4g) fireworks within a specified time of day, 365 days a year. Sale of these products required a license from the Maine Fire Marshal’s Office granted to facilities meeting some of the requirements set forth in the National Fire Protection Association (NFPA) code 1124 Code for the Manufacture, Storage and Retail Sales of Pyrotechnic Articles and Maine’s Uniform Building Code. Maine’s law allows municipalities to prohibit and or restrict the sale or use of consumer fireworks in a given town and also permits the issuance of a local permit to sell in addition to the state sales license. Possession is not regulated by state or local authorities with the exception being three products: sky and bottle rockets, helicopters and aerial spinners, and missile type rockets. These three products are illegal to use, possess or sell in Maine.
The primary objectives of the Maine Fire Marshal were to develop a licensing program that would ensure public safety in facilities selling fireworks and to monitor and evaluate information on the impact of legalized consumer fireworks in Maine as authorized in Chapter 416.

When Chapter 416 passed, Maine joined forty-six other states in legalizing the sale, use, and possession of some or all types of consumer fireworks. New York, Delaware, New Jersey and Massachusetts are the only states prohibiting all consumer fireworks. The forty-six states allowing consumer fireworks vary considerably as to how they license and oversee the use of these products and there is also a considerable range of products that are not allowed in one state as opposed to the other. The mechanism used to make a decision as to what products should be prohibited also varies from state to state.
Though defined and regulated by the Consumer Products Safety Commission, the standards used to address the design, packaging and labeling of these products as required are set up by the American Fireworks Standards Laboratory (AFSL). The Maine Fire Marshal’s Office uses their documents and actively looks for their stamp on all cartons and shipping containers bringing consumer fireworks to licensed stores in Maine. The AFSL breaks consumer fireworks down into twelve classifications of product that vary considerably in terms of size and operation and each has their own unique design, packaging and labeling requirements set forth by the CPSC in addition to federal Department of Transportation regulations.

LICENSING
When the first session of the 125th Maine legislature came to a conclusion, the Office of the Maine Fire Marshal began to develop rules for licensing the retail sales of consumer fireworks in Maine. Following the prescribed process for the proposal and adoption of routine technical rules, as established in the Maine Administrative Procedures Act, the Fire Marshal’s Office adopted Chapter 36, Consumer Fireworks Sales License rule (Appendix 2). The rule primarily addresses the licensing of the stores, as opposed to general use, and provides guidance for people seeking to open a store and need assistance navigating through the differences between NFPA 1124, the statute as written and the building code. For instance, while NFPA 1124 would actually permit the sale of consumer fireworks in outdoor stands or in buildings without sprinklers, Maine law only allows sale to take place in fixed stand alone facilities dedicated solely to the sale of fireworks. In addition, Maine’s Uniform Building Code requires some level of sprinkler system to be installed.
To be licensed you must complete an application which can be downloaded from our website with an application checklist to assist the applicant in the process (Appendix 3). As required in statute, applicants provided us with ATFE documentation, a $100.00 application fee, a list of those in ownership or partnership in the operation of the business, and a layout plan of the facility along with other requirements. Once the application materials were received the Office of the Fire Marshal sent two individuals to the facility to inspect the building for compliance with the statute, rule, and product requirements (fireworks). Initially, as a courtesy and because this was new to Maine entrepreneurs’ and the Fire Marshal, inspectors were sent out to do what amounted to a pre-inspection. Because so many individuals were unfamiliar with building codes, we felt this additional assistance was critical to successfully opening a facility that would be both safe to the public and employees as well as avoid delaying business openings. We estimate we did at least sixteen pre-inspection inspections.
With all the paper work completed and counsel provided with regard to the physical facility, an inspection for licensing was conducted, a fee of $4,900.00 was collected and the license issued. In 2012, sixteen stores were successfully licensed for a total of $80,000.00 with minor correctable deficiencies. The most common problems were inadequate steps that did not meet the Americans with Disability Act access standards and untapped fuses on the products. On occasion some products were placed on the floor in areas too close to the door and potentially inhibited exiting. Opening these facilities required approximately 35 visits, pre-inspections, inspections, and follow-ups to check on deficiencies. On an unannounced basis and while in the area, inspectors will visit a store to assist and do spot inspections. Such an inspection would be to ensure the store is providing consumers with product safety information as well as posting a current ATF license, proof of insurance, and listing of current municipal restrictions and prohibitions of the sale and/or use of consumer fireworks.
TOWN ORDINANCES, PHONE AND DIRECT ASSISTANCE TO MAINE RESIDENTS, LAW ENFORCEMENT, FIRE AND LOCAL PUBLIC POLICY MAKERS

Though the Office of the State Fire Marshal focused it’s energy on licensing the retail sales of consumer fireworks while leaving the regulation of use up to the municipalities, the Office still received and managed a considerable number of inquiries from residents, law enforcement agencies, fire and local public policy makers. As required in statute municipalities choosing to restrict or prohibit the sale and or use of consumer fireworks, or those permitting the sale of consumer fireworks must provide the Office of the State Fire Marshal with a copy of the ordinance enacted to enforce said restrictions, prohibitions or sales permit processes. As part of its rule the State Fire Marshal required that each store licensed to sell consumer fireworks post the list of all municipal restrictions and prohibitions (Appendix 4). The Office of the State Fire Marshal also provided town officials with a Sample Town Sale Permit to use if they chose to permit the sale of consumer fireworks in their community (Appendix 5). This sample is also available on the Fire Marshal’s web page.
At the conclusion of 2012, the State Fire Marshal had received 56 municipal ordinances. They vary in type. Some towns, in particular larger more densely populated communities tended to prohibit the use of consumer fireworks outright due to the obvious risk posed by aerial devices in particular. Others limited use to selected areas of the community or broadened the list of prohibited product. Some prohibited sale while some allowed and required the facility obtain a municipal license in addition to the State license. A couple of towns have required permits to use which they are not authorized to do in statute.
The Office of the Fire Marshal sent speakers to town meetings and other events at which proposed ordinances were being discussed to assist the locality in developing the ordinance. In many situations this was done via e-mail and phone contact. Many man hours were used to provide assistance to towns developing ordinances and in general understanding precisely what consumer fireworks were. Local officials ranging from fire departments, police and select board members were exceeded only by residents in making phone inquires to our office.
The most frequent complaint made to the Fire Marshal’s Office from residents, with regard to fireworks, were about noise. Some Maine residents were upset that the noise was ruining the peace and quiet they once enjoyed, or it was keeping children up at night, and disturbed wild and domesticated animals. Some, few in contrast to those complaining about noise, expressed a concern about their safety and that of their family. The Fire Marshal’s Office staff always recommended talking to the neighbor about it first and if that didn’t succeed perhaps calling local law enforcement officials to facilitate such a discussion.
CONSUMER FIREWORKS RELATED INJURIES AND FIRES
Our primary concern regarding the use of consumer fireworks was the potential for injury and fire resulting from the misuse of these products. Like many appliances and devices in general, the failure to follow all the instructions provided with each product combined with the variety of products was of concern to us. The Fire Marshal’s Office analyses of consumer fireworks lead us to believe that it would not likely be the product itself as much as the misuse of the product that would be the problem. This along with the fact that the product would be increasingly available led us to believe that we would see an increase in injuries and fires related to the use of consumer fireworks. Because we only have a one year of injury data from an entirely new source and less than that for fire, we really do not know the impact of the legalization of consumer fireworks in Maine. We certainly are not able to, at this time; put a cost on consumer fireworks related injuries or fires.
Working with the Maine Hospital and Maine Medical Associations, the Fire Marshal’s Office developed two forms to be completed by physicians and attendants at Maine hospitals and clinics when treating a patient who’d received an injury from a consumer fireworks product (Appendix 6). The central purpose of the forms was to gather information that would help us identify what was happening and what type of device was involved. There were nineteen forms completed in 2012 and one so far in 2013. Table 1 below provides you with a distribution of injuries by percentage across type of device, reason, severity, and body part injured categories.
Table 1


Type of Device

 

Hand Held

23.5%

Display

76.5%

Other

5.9%

Reason for injury

 

Bystander

23.5%

User Error

47.1%

Device Malfunction

35.3%

Other

17.6%

Severity of Injury

 

None

0.0%

Minor

23.5%

Moderate

64.7%

Significant

17.6%

Fatal

0.0%

Body Part Injured

 

Head/face

17.6%

Extremity

29.4%

Torso

11.8%

hand

11.8%

eye

17.6%

ear

5.9%

mouth

5.9%

arm

5.9%

ankle

5.9%

knee

5.9%

back

5.9%
As you can see stationary devices (display) which are supposed to be placed on the ground and away from people managed to be the leading product involved in these injuries. All these devices have instructions specifically warning users to use safety equipment (eye protection) and keep bystanders away. The Fire Marshal’s hypothesis is that user error, identified as the leading reason for injury, was indeed the problem in these nineteen injuries.
We obviously would like to see the overall count drop and the number of moderate to severe injuries reduced. The Fire Marshal was relieved however to see that significant injuries ranked third and that there were no fatalities. Our goal in the coming years will be to shift the distribution of severity from the moderate range to the minor range.
Needless to say, no injury is a good injury, but the distribution of body parts injured was not unanticipated though until 2013 no incidents involving the loss of an eye were reported. What did surprise the Fire Marshal’s Office the most was the fact that hand held devices, in particular sparklers, did not rank number one as they do nationally as a cause of consumer fireworks related injury in terms of type of device. This might be due to the fact that they have been allowed in Maine for many years.
It is necessary to understand that this was the first time physicians used this form and there may have been some confusion. As anticipated, more than one body part or type of device box was checked leading to cumulative percentages higher than 100%. Perhaps the Fire Marshal’s most critical concern would be the number of product malfunctions which ranked second to user error for reason of injury. Physician inexperience with the forms, inaccurate information being provided by the patient, and other variables play a role in how much we can accurately say about these numbers. The Office of the Fire Marshal will continue to monitor these results and share them with the medical community in an effort to improve the reporting mechanism itself (form) and bring awareness to the medical community as to what things to watch out for in the coming years. Finally, the injuries do cluster around the 4th of July with an estimated 46% occurring at that time. Over the course of the year remaining, injuries appear to be randomly distributed.
The data on fires related to fireworks for 2012 is incomplete because many fire departments in Maine will not submit all the data for a given year until July of the following year. Table 2 below provides some detail about the eleven fires that were reportedly caused by fireworks during the year 2012. Ten out of the eleven fires occurred outdoors (140 – 160 inc type) with one building fire. The outdoor fires caused minimum property damage though the one building fire caused an estimated $60,000
Table 2

Maine Fire Incident Reporting System Fires due to heat source fireworks for 2012

 

 

FD_NAME

IN_DATE

IN_TYPE

LOSSTOTAL

CIV-Injuries

FS-Injuries

HEATSOURCE

Portland Fire Department

2/28/2012 0:00

143

0

0

0

54

Windham Fire Department

4/16/2012 0:00

160

0

0

0

54

Chelsea Fire Department

4/30/2012 0:00

142

0

0

0

54

Skowhegan Fire Department

5/10/2012 0:00

1601

0

0

0

54

Portland Fire Department

6/21/2012 0:00

142

10

0

0

54

Portland Fire Department

6/30/2012 0:00

151

2

0

0

54

Portland Fire Department

7/2/2012 0:00

111

60000

0

1

54

Ellsworth Fire Department

7/4/2012 0:00

140

0

0

0

54

Norridgewock Fire Department

7/12/2012 0:00

142

0

0

0

54

Ellsworth Fire Department

7/21/2012 0:00

143

0

0

0

54

South Portland Fire Department

7/22/2012 0:00

143

0

0

0

54


in damage in terms of property and contents lost in addition to a firefighter injury. Interestingly, six of the eleven events occurred in a town that has prohibited the sale and use of consumer fireworks entirely. Between 2002 and 2010 Maine fire departments reported seventy-one (eight fires on average p/year) fires where the heat source of the fire was fireworks. These fires burned approximately four acres of land and caused $233,000 in property losses. Thirteen of these fires were in single family dwellings and one in an apartment. The others were primarily outdoors. Based on current data and historical record it appears we did see an increase in fires in Maine following the legalization of consumer fireworks. Again, because it is only one year, we can not conclude this was due to the new law.

The forest service provided the following information on fireworks related fires for the years 2010 to 2012 in Table 3. The forest service noted that 2012 was a wet summer during the Memorial Day and July 4th holidays.
Table 3

Maine Department of Agriculture, Conservation and Forestry

Year

# Fires caused by Fireworks

 

2010

66

 

2011

15

 

2012

38

 


SUMMARY AND RECOMMENDATIONS
As indicated in the report, one year’s worth of data on fire and injuries does not truly tell us what impact the legalization of consumer fireworks had in Maine. The report does however establish a template upon which to build on and monitor the sale and use of these products in Maine for future policy making purposes. The Fire Marshal’s Office also is unaware of costs associated with noise and local policing efforts.
There are aspects of the legislation that would assist all stakeholders, including the fireworks industry itself, that need to be clarified. Certainly a clean separation between 1.4g, 1.3g and novelty fireworks possession, use, and sale needs to be made clear in the law. The Fire Marshal’s Office along with small business owners, vendors of novelty fireworks, and the law enforcement community would all greatly appreciate a legislative delineation between these three unique types of fireworks.
Because the ATFE claims they do not regulate 1.4g products nor permit the sale of such products, it would be wise to remove the federal permit requirement from the law and instead conduct background checks through our own State Bureau of Identification. This would still involve a fee but would also remove an administrative impediment that has slowed down the licensing process for those seeking to obtain a license to sell consumer fireworks in Maine.



Appendix 1: PL, Chapter 416, LD 83, An Act to Legalize the Sale, Possession, and Use of Fireworks
An Act To Legalize the Sale, Possession and Use of Fireworks

Be it enacted by the People of the State of Maine as follows: Sec. 1. 8 MRSA §221-A, sub-§1-A is enacted to read:

1-A. Consumer fireworks. "Consumer fireworks" has the same meaning as in 27 Code of Federal Regulations, Section 555.11 or subsequent provision, but includes only products that are tested and certified by a 3rd-party testing laboratory as conforming with United States Consumer Product Safety Commission standards, in accordance with 15 United States Code, Chapter 47. "Consumer fireworks" does not include the following products:

A. Missile-type rockets, as defined by the State Fire Marshal by rule;

B. Helicopters and aerial spinners, as defined by the State Fire Marshal by rule; and

C. Sky rockets and bottle rockets. For purposes of this paragraph, "sky rockets and bottle rockets" means cylindrical tubes containing not more than 20 grams of chemical composition, as defined by the State Fire Marshal by rule, with a wooden stick attached for guidance and stability that rise into the air upon ignition and that may produce a burst of color or sound at or near the height of flight.


Sec. 2. 8 MRSA §221-A, sub-§3-A is enacted to read:

3-A. Fire safety official. "Fire safety official" means a state or municipal official who has authority to enforce life and fire safety laws, statutes, ordinances, rules or regulations.

Sec. 3. 8 MRSA §221-A, sub-§4, as amended by PL 2011, c. 202, §1, is further amended to read:

4. Fireworks. "Fireworks" means any:

A. Combustible or explosive composition or substance;

B. Combination of explosive compositions or substances;

C. Other article that was prepared for the purpose of producing a visible or audible effect by combustion, explosion, deflagration or detonation, including blank cartridges or toy cannons in which explosives are used, the type of balloon that requires fire underneath to propel it, firecrackers, torpedoes, skyrockets, roman candles, bombs, rockets, wheels, colored fires, fountains, mines, serpents and other fireworks of like construction;

D. Fireworks containing any explosive or flammable compound; or

E. Tablets or other device containing any explosive substance or flammable compound.

The term "fireworks" does not include consumer fireworks or toy pistols, toy canes, toy guns or other devices in which paper caps or plastic caps containing 25/100 grains or less of explosive compound are used if they are constructed so that the hand can not come in contact with the cap when in place for the explosion, toy pistol paper caps or plastic caps that contain less than 20/100 grains of explosive mixture, sparklers that do not contain magnesium chlorates or perchlorates or signal, antique or replica cannons if no projectile is fired.

Sec. 4. 8 MRSA §223, sub-§1, as amended by PL 2003, c. 452, Pt. C, §3 and affected by Pt. X, §2, is further amended to read:

1. Sale of fireworks prohibited. AExcept for the sale of consumer fireworks under section 223#A, a person may not sell, possess with the intent to sell or offer for sale fireworks.
Sec. 5. 8 MRSA §223-A is enacted to read:
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