CPSC Suggested Comment

The undersigned oppose the Consumer Product Safety Commission’s proposed Direct Final Rule in Docket No. CPSC-2023-0021. As written, the effect of the Commission’s proposed rule would have significant and unnecessary economic impact on the undersigned and all in the air-soft industry. The Regulatory Flexibility Act (AFA), 5 U.S.C. 601-612 does apply and requires the Commission to prepare an analysis under 5 U.S.C. 603, 604. Without comment from the industry, the proposed Direct Final Rule would be inappropriate and unacceptable without changes.

The Commission’s stated basis for the Direct Final Rule Process is that the new 16 CFR Part 1272 contains no substantive changes from regulations in effect now for more than 30 years. The reason for the new 16 CFR Part 1272 is that recent federal legislation has transferred oversight and enforcement of the regulation from the Department of Commerce to the Commission. Because the Consumer Product Safety Act requires certain certifications for products subject to regulations enforced by the Commission (see Supplementary Information, Paragraph G in the docket entry), the new, proposed 16 CFR Part 1272 would unnecessarily impact the air-soft industry negatively, substantively and financially.

The subject regulation was enabled by 15 U.S.C. § 5001 which imposes certain marking requirements on “look-alike firearms.” Look-alike firearms include “air-soft guns firing nonmetallic projectiles.” 15 U.S.C. § 5001 (c). While the undersigned have long complied with this statute and 16 CRR Part 1272, there has been no requirement for any general product certifications (GCC). Now, apparently, there would be such a requirement. See Supplementary Information, Paragraph G in the docket entry.

Because the Commission states in the subject docket entry that the Commission would be requiring GCCs for air-soft guns, the undersigned and the industry request an opportunity to comment under the Administrative Procedure Act (APA). See generally, 5 U.S.C. 551-559. The undersigned and the industry request that opportunity to address whether GCCs for air-soft guns under 16 CFR Part 1272 is necessary. It is readily apparent upon visual examination whether an air-soft gun complies with 16 CRR Part 1272 marking requirements. GCCs are not necessary.

The undersigned believe the Commission is also required to conduct a flexibility analysis under 5 U.S.C. 603, 504. Many in the industry are small businesses.

The undersigned also state that they and others in the industry are not equipped to provide GCCs for their air-soft products, in the near future, particularly those that would comply with the legal requirements. See, e.g., 15 U.S.C. 2063 (g). Many of their air-soft products are in transit, in inventory, with distributors, and in retail stores.

The rule adopts the Dept of Commerce regulation 15 CFR part 272. The regulation referenced a now-obsolete ASTM standard F589-85 (testing of non-powder guns). F589 is the not the correct ASTM standard for airsoft guns. This standard was meant for BB and pellet guns. The F589 standard was updated to F589-17 and this current version states that it does not cover airsoft guns. The fact that F589 is not the correct standard for airsoft guns is another reason this rule inappropriate and ineffective.

To quote the incorrectly applied ASTM F589 standard, "in 92 % of the accidents, the product was operated as it was intended. Most injuries were caused by carelessness or intentional shooting." Aside from the fact that the injuries were caused by BB and pellet guns and not airsoft guns, this is yet another reason the rule and GCC requirement would be ineffective as it would not prevent carelessness or intentional shooting.

If the Commission insists on using the incorrect F589 standard, it should at least update the rule to reference the current F589-17 version.

Penetration testing has been done using calibrated ballistic gel (to FBI standards) and found that at normal velocities, rounds fired from an airsoft gun do not penetrate enough to be deadly. This doesn't include the addition of skin or clothing which reduces the risk of penetration to near zero. I'm not aware of a single case to date where a death was caused by an airsoft gun. The only potential avenue for serious injury is ocular damage which is negated with proper eye protection. Deaths related to the use of an airsoft gun are due to being mistaken as a real firearm. Marking and safety warning requirements are already in place. The rule and the requirement of a GCC would be ineffective in reducing deaths or serious injuries related to airsoft guns.

Accordingly, the undersigned requests the Commission withdraw the proposed direct final rule. The undersigned appreciate and understand the Commission’s approach and requests the Commission consider excepting air-soft guns from any requirement for GCCs.

Thank you for your consideration.