Proposed Rule2023-25887
Hazardous Materials: Streamlining Requirements for the Approval of Certain Energetic Materials
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Published
November 30, 2023
Issuing agencies
Transportation DepartmentPipeline and Hazardous Materials Safety Administration
Abstract
PHMSA proposes to amend the Hazardous Materials Regulations to revise the classification and approval process for certain low-hazard fireworks; to revise classification criteria for small arms cartridges to include tracer ammunition; to include the PHMSA portal as the method to submit applications for all explosives approvals; and to allow for voluntary termination of an explosive approval by the approval holder.
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<title>Federal Register, Volume 88 Issue 229 (Thursday, November 30, 2023)</title>
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[Federal Register Volume 88, Number 229 (Thursday, November 30, 2023)]
[Proposed Rules]
[Pages 83514-83530]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-25887]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 107, 171, and 173
[Docket No. PHMSA-2020-0103 (HM-257A)]
RIN 2137-AF50
Hazardous Materials: Streamlining Requirements for the Approval
of Certain Energetic Materials
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
Department of Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: PHMSA proposes to amend the Hazardous Materials Regulations to
revise the classification and approval process for certain low-hazard
fireworks; to revise classification criteria for small arms cartridges
to include tracer ammunition; to include the PHMSA portal as the method
to submit applications for all explosives approvals; and to allow for
voluntary termination of an explosive approval by the approval holder.
DATES: Comments must be submitted by February 28, 2024. PHMSA will
consider late-filed comments to the extent possible.
ADDRESSES: You may submit comments by identification of the docket
number (PHMSA-2020-0103 [HM-257A]) by any of the following methods:
Federal Rulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
online instructions for submitting comments.
Fax: 1-202-493-2251.
Mail: Docket Management System, U.S. Department of Transportation,
Docket Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey
Avenue SE, Washington, DC 20590-0001.
Hand Delivery: U.S. Department of Transportation, Docket
Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue
SE, Washington, DC 20590-0001 between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
Instructions: Include the agency name and docket number PHMSA-2020-
0103 (HM-257A) or RIN 2137-AF50 for this rulemaking at the beginning of
your comment. Note that all comments received will be posted without
change to <a href="https://www.regulations.gov">https://www.regulations.gov</a> including any personal
information provided. If sent by mail, comments must be submitted in
duplicate. Persons wishing to receive confirmation of receipt of their
comments must include a self-addressed stamped postcard.
Docket: For access to the public docket to read background
documents or comments received, visit <a href="https://www.regulations.gov">https://www.regulations.gov</a> or
the DOT Docket Operations Office (see ADDRESSES).
Confidential Business Information: Confidential Business
Information (CBI) is commercial or financial information that is both
customarily and actually treated as private by its owner. Under the
Freedom of Information Act (FOIA; 5 U.S.C. 552), CBI is exempt from
public disclosure. If your comments responsive to this NPRM contain
commercial or financial information that is customarily treated as
private, that you actually treat as private, and that is relevant or
responsive to this NPRM, it is important that you clearly designate the
submitted comments as CBI. Please mark each page of your submission
containing CBI as ``PROPIN.'' Submissions containing CBI should be sent
to Eugenio Cardez, U.S. Department of Transportation, 1200 New Jersey
Avenue SE, Washington, DC 20590-0001. Any commentary PHMSA receives
that is not specifically designated as CBI will be placed in the public
docket for this rulemaking.
FOR FURTHER INFORMATION CONTACT: Mr. Eugenio Cardez, Transportation
Specialist, Standards and Rulemaking Division, Office of Hazardous
Materials Safety, 202-366-8553, 1200 New Jersey Avenue SE, Washington,
DC 20590.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Low Hazard Fireworks
B. Tracer Ammunition
C. Changes to the Approvals Process
II. Incorporation by Reference Discussion Under 1 CFR Part 51
III. Proposed Amendments
A. Establishing Exceptions for Ground and Novelty Device
Fireworks
B. Authorizing the Self-Classification of Tracer Ammunition
C. Amending the Approvals Process
IV. Section-by-Section Review
V. Regulatory Analyses and Notices
A. Statutory/Legal Authority
B. Executive Orders 12866 and 14094; DOT Regulatory Policies and
Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act and Executive Order 13272
F. Paperwork Reduction Act
G. Unfunded Mandates Reform Act of 1995
H. Draft Environmental Assessment
I. Privacy Act
J. Executive Order 13609 and International Trade Analysis
K. National Technology Transfer and Advancement Act
L. Severability
M. Cybersecurity and Executive Order 14028
I. Background
The pyrotechnic industry is a global logistics supply chain
comprised of mostly foreign fireworks manufacturers and domestic
importers, retailers, distributors, carriers, and consumers. Fireworks
are a Class 1 explosive material in accordance with the Hazardous
Materials Regulations (HMR; 49 Code of Federal Regulations (CFR) parts
171-180). Class 1 explosives are divided into six divisions based on
their explosion hazard: 1.1, 1.2, 1.3, 1.4, 1.5, and 1.6. PHMSA
proposes to amend the classification and approval process of certain
low-hazard fireworks of Division 1.4G. As defined in Sec. 173.50 of
the HMR, Division 1.4 consists of explosives that present a minor
explosion hazard. Division 1.4 explosives have explosive effects that
are largely confined to the package; no projection of fragments of
appreciable size or range is to be expected; and an external fire must
not cause virtually instantaneous explosion of almost the entire
contents of the package. Explosives are assigned compatibility codes
used to specify the controls for the transportation, and storage
related thereto, of explosives and to prevent an increase in hazard
that might result if certain types of explosives were stored or
transported together. Explosives assigned a ``G'' code are not limited
to fireworks and may also be defined as pyrotechnic substances or
articles containing a pyrotechnic substance, or articles containing
both an explosive substance and an illuminating, incendiary, tear-
producing or smoke-producing substance.
Subpart C of part 173 details requirements for the classification
and packaging of Class 1 explosive materials and specifies that
explosives, including fireworks, must be approved and assigned an
explosives approval number --i.e., an EX number--by PHMSA, based on
actual testing and classification, prior to transportation to, from,
and within the United States. Section 173.64 permits Division 1.3G and
1.4G fireworks to be approved without prior examination based on
certain conditions, including compliance with the provisions of the
2018 American Pyrotechnic Association (APA) Standards 87-1A, 1B, and
1C,
[[Page 83515]]
which are incorporated by reference in Sec. 171.7.\1\ Further, Sec.
173.65 permits--in lieu of an approval--Division 1.4G consumer
fireworks (as defined in Sec. 171.8) to be certified by a DOT-approved
Fireworks Certification Agency (FCA). After the FCA reviews the
consumer fireworks application and certifies it meets the requirements,
the FCA assigns an FC number in place of an EX number for Division 1.4G
consumer fireworks.
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\1\ The 2018 APA Standards 87-1A, 1B, and 1C were incorporated
by reference in the Hazardous Materials: Adoption of Miscellaneous
Petitions To Reduce Regulatory Burdens Final Rule. 85 FR 75680 (Nov.
25, 2020). See <a href="https://www.federalregister.gov/documents/2020/11/25/2020-23712/hazardous-materials-adoption-of-miscellaneous-petitions-to-reduce-regulatory-burdens">https://www.federalregister.gov/documents/2020/11/25/2020-23712/hazardous-materials-adoption-of-miscellaneous-petitions-to-reduce-regulatory-burdens</a>.
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All fireworks transported to, from, and within the United States
must be approved by PHMSA or certified by an FCA. The current approval
process requires PHMSA personnel to conduct a multi-step review of each
application, which includes accepting an application, entering
application data into a database; reviewing the application for
completeness and compliance with the APA standard; drafting the final
action letter; conducting the final review; and signing and issuing the
final approval. PHMSA estimates its review process takes about two
hours per application, for an estimated 425 labor hours annually. PHMSA
provides approvals free of charge as a public service to manufacturers.
However, manufacturers have the option to use commercial FCAs for
Division 1.4 consumer fireworks, which certify products for a fee, and
may process approvals faster. See the preliminary regulatory impact
analysis (PRIA) in the docket for this rulemaking for additional
information.\2\
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\2\ The PRIA is available in the regulatory docket (Docket ID:
PHMSA-2020-0103) at <a href="http://www.regulations.gov">www.regulations.gov</a>.
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A. Low Hazard Fireworks
Low hazard fireworks refer to a group of explosive articles that
are not designed to leave ground level, contain no aerial components,
and contain less than 100 grams of chemical composition per tube. These
devices have a minimal and well-understood hazard as explosives.
Specifically, low hazard fireworks can only be manufactured using
chemicals from the ``Permitted and Restricted Chemical Table for
Consumer Fireworks and Novelties,'' \3\ and reports \4\ are restricted
to 50 milligrams of report composition. The European community
conducted extensive fireworks testing prior to the development of the
United Nations (UN) default fireworks table. The devices proposed under
this rulemaking for classification as Division 1.4G fireworks are
consistent with the UN default table, as well as 30 years of
classification experience under the APA standards.
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\3\ <a href="https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2021-09/2018%20APA%2087-1%20A.pdf">https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2021-09/2018%20APA%2087-1%20A.pdf</a>.
\4\ Report: A concussive effect and flash of light produced by
the ignition of a chemical composition.
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Low hazard fireworks include ground and novelty firework devices,
as currently listed in the 2018 APA Standard 87-1A.
Ground Devices
The 2018 APA Standard 87-1A defines ``ground device'' as a device
designed to produce its effects at or near ground level. The following
17 individual ground devices are defined as low hazard fireworks and
may be approved or certified for transportation in accordance with the
HMR provided they meet the requirements for construction, formulation,
and packaging: Chaser, Crackling Ball, Crackling Strip, Crackling Tube,
Firecracker, Flasher/Strobe, Flitter Sparkler, Fountain Cone, Fountain
Cylindrical, Fountain Nitrocellulose, Ground Spinner, Illuminating
Torch, Smoke, Snake, Specialty Device, Wheel, and Wire Sparkler or
Dipped Stick.
Ground devices meeting the provisions of the 2018 APA Standard 87-
1A are classified and described as ``UN0336, Fireworks, Division
1.4G.'' Currently, ground devices are either approved by PHMSA
personnel or certified by an FCA upon completion of a multi-step review
of each application. PHMSA proposes streamlining the approval or
certification process of these fireworks by allowing self-certification
using an online application in the PHMSA portal with an automated
process for review and issuance of a certification. This automated
process may be used for the low hazard fireworks identified in this
rule in lieu of the current process and would no longer require PHMSA
or FCA personnel to conduct time-consuming reviews of each application
or impose a cost on manufacturers who opt to use a FCA to certify these
fireworks. Manufacturers of fireworks that meet the required criteria
for the construction, formulation, and packaging of these ground
devices--specifically discussed in Section II: Proposed Amendments--
would certify compliance with specified conditions and limitations
online and receive a certificate with a unique identifier number (i.e.,
FW number) for each firework type. The online system will provide
immediate comparison of the technical information provided against the
criteria established for low hazard fireworks. Because of the low
hazard associated with these fireworks, and because we maintain
oversight through PHMSA's Quality Assurance and Quality Control (QA/QC)
review program \5\ of applications submitted through the PHMSA portal,
PHMSA believes the current safety level for transport of these
fireworks will be maintained when using this process for certification
of eligible ground device fireworks.
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\5\ The PHMSA QA/QC Low Hazard Fireworks Review Program is
currently under development while completing development of the
electronic process, and when finalized will be similar to the PHMSA
Fireworks FCA QA/QC Review Program.
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Multi-tube devices, such as cake and combination fireworks devices,
are excluded from this rulemaking. PHMSA is not proposing that multi-
tube devices be allowed to be self-certified via the PHMSA portal at
this time; however, manufacturers will still use the PHMSA portal for
submitting an application for the standard explosive approval.
Novelty Devices
In 1995, PHMSA issued ``Guidance and Criteria for Fireworks
Novelties,'' which sought to resolve confusion regarding novelty
devices (i.e., novelties) and PHMSA's explosives regulations. The
guidance document was later reissued under the same name in 2005 and
2015, with only editorial changes. The current version \6\ includes
five novelties that--when shipped domestically by ground, rail, or
vessel--may be transported as not regulated as explosives when
manufactured in accordance with the provisions outlined for each type
of device as specified in the 2001 APA Standard 87-1. The 2018 APA
Standard 87-1A includes two additional novelties that may be excluded
from HMR requirements--for a total of seven novelties for consideration
for approval or certification for transportation as not subject to
further regulation in accordance with proposed changes to the HMR,
provided they meet the conditional requirements for construction,
formulation, packaging, and transportation mode. The seven novelties
are Booby Trap/Pull Apart, Novelty Flitter Sparkler, Party Popper,
Novelty Snake, Snapper, Novelty Wire Sparkler or Novelty Dipped Stick,
and Novelty Smoke Device. However, when these novelties are prepared
for
[[Page 83516]]
transportation by air, they must be classified and described as
``UN3178, Flammable solid, inorganic, n.o.s. (novelties)'' and shipped
in accordance with requirements of the HMR.
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\6\ See ``Guidance and Criteria for Fireworks Novelties,''
available at: <a href="https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/approvals-and-permits/hazmat/energetic-materials-approvals/57711/inalguidancefandcriteriaforfireworksnoveltydevices03192015.pdf">https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/approvals-and-permits/hazmat/energetic-materials-approvals/57711/inalguidancefandcriteriaforfireworksnoveltydevices03192015.pdf</a>.
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A PHMSA approval or FCA certification is not required for novelties
manufactured in accordance with the provisions outlined for each type
specified in the APA standards when transported domestically by ground,
rail, or vessel, but this exception is only applicable within the
United States and its territories. PHMSA proposes to authorize the use
of the automated self-certification process to enable the manufacturer
to receive a certificate for use with international transportation.
Manufacturers of novelties meeting the required criteria for the
construction, formulation, and packaging of these devices would certify
compliance with specified conditions and limitations online and receive
a certificate with a unique identifier (defined as an ``FW number'')
for each firework type, in the same manner proposed for ground devices.
There have been no systemic safety issues or safety concerns
involving shipments of novelties that meet the requirements of both the
APA standards and PHMSA's guidance memo. The history of safe shipments
helps demonstrate that the proposed amendment will not have an adverse
effect on safe transportation of these fireworks. Rather, the proposed
changes ++in this NPRM will codify existing guidance to promote
increased regulatory clarity and consistency, which will--at a
minimum--maintain the current level of safety. Publication of a final
rule will supersede previously issued guidance on this matter.
B. Tracer Ammunition
Section 173.56(h) authorizes self-classification of certain types
of small arms cartridges into Division 1.4S, provided certain
conditions are met. Explosives assigned an ``S'' code are defined as
substances or articles so packed or designed that any hazardous effects
arising from accidental functioning are limited to the extent that they
do not significantly hinder or prohibit firefighting or other emergency
response efforts in the immediate vicinity of the package. In
particular, Sec. 173.56(h)(3) specifies a condition that the
ammunition has an inert projectile or is blank. However, the current
criteria is silent on whether this ammunition includes tracer
ammunition. Tracer ammunition utilizes a small amount of a pyrotechnic
charges at the base or as coating of the projectile to make the
trajectory of the projectile visible to the naked eye. As such,
considering the Sec. 173.56(h)(3) condition, affected entities have
expressed uncertainty whether tracer ammunition is considered inert
and, therefore, qualifies for the exception in paragraph (h). PHMSA
considers the small amount of pyrotechnic charge as a negligible
quantity of explosive material compared to the quantity of propelling
charge contained within the cartridge itself, and this small amount of
pyrotechnic charge at the base of or coated on the projectile does not
increase the hazard in a bonfire test nor make unintentional initiation
any more likely. In this rulemaking, PHMSA is considering allowing
tracer ammunition to be eligible for self-classification as a Division
1.4S material provided all criteria outlined in Sec. 173.56(h) are
met.
C. Changes to the Approval Process
Currently, as part of the Hazardous Materials Program Procedures,
in 49 CFR 107.705, the approval process for submitting applications
includes mail, email, or fax. Although not explicitly stated, PHMSA
also accepts applications for approvals submitted through the PHMSA
portal.\7\ PHMSA proposes to amend 49 CFR 107.705 to add the PHMSA
portal to the current options to submit all types of approval
applications, and to specify that use of the PHMSA portal will be the
only option to submit explosives approval applications and to self-
certify manufacture of low hazard fireworks. To be clear, PHMSA
proposes that from the effective date of a published final rule,
persons will no longer be able to submit explosives approval
applications by mail, email, or fax and must use the PHMSA portal.
PHMSA believes efficiencies will be gained by moving to an electronic
only service. The PHMSA portal provides the public online access to
PHMSA services, creating a single source for Hazardous Materials and
Pipeline Safety applications and data. Persons need only to register to
create an account to access and use the portal. Further discussion is
provided in ``Section II.C.''
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\7\ The PHMSA portal is available online at <a href="https://portal.phmsa.dot.gov/phmsapub/faces/PHMSAHome">https://portal.phmsa.dot.gov/phmsapub/faces/PHMSAHome</a>;PHMSAPUB_SESSIONID=aHhG4dIf1U0E2nq599uvQ-
RWl3nzKlgWsLSOcwxPNzx1te7cDD3R!883673165?req=-
3710157719365173927&attempt=0&_afrLoop=1686827584595767&_afrWindowMod
e=0&_afrWindowId=null&_adf.ctrl-state=ns6jrdcpu_1.
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Furthermore, 49 CFR 107.713 describes the process for the
modification, suspension, and termination of approvals. As currently
prescribed in 49 CFR 107.713(c), before an approval is modified,
suspended, or terminated, PHMSA must provide approval holders an
opportunity to show cause why the proposed action should not be taken.
PHMSA proposes to add a new paragraph (e) to allow approval holders to
request termination of approvals, and to revise paragraph (c) to
clarify that when an approval holder voluntarily seeks to terminate an
approval, PHMSA is not required to issue a show cause letter.
II. Incorporation by Reference Discussion Under 1 CFR Part 51
According to the Office of Management and Budget (OMB), Circular A-
119, ``Federal Participation in the Development and Use of Voluntary
Consensus Standards and in Conformity Assessment Activities,''
government agencies must use voluntary consensus standards wherever
practical in the development of regulations.
PHMSA currently incorporates by reference into the HMR all or parts
of numerous standards and specifications developed and published by
standard development organizations (SDO). In general, SDOs update and
revise their published standards every two to five years to reflect
modern technology and best technical practices. The National Technology
Transfer and Advancement Act of 1995 (NTTAA; Pub. L. 104-113) directs
Federal agencies to use standards developed by voluntary consensus
standards bodies in lieu of government-written standards whenever
possible. Voluntary consensus standards bodies develop, establish, or
coordinate technical standards using agreed-upon procedures. OMB issued
Circular A-119 to implement section 12(d) of the NTTAA relative to the
utilization of consensus technical standards by Federal agencies. This
circular provides guidance for agencies participating in voluntary
consensus standards bodies and describes procedures for satisfying the
reporting requirements in the NTTAA. Accordingly, PHMSA is responsible
for determining which standards currently referenced in the HMR should
be updated, revised, or removed, and which standards should be added to
the HMR. Revisions to materials incorporated by reference in the HMR
are handled via the rulemaking process, which allows for the public and
regulated entities to provide input. During the rulemaking process,
PHMSA must also obtain approval from the Office of the Federal Register
to incorporate by reference any new materials. The Office of the
Federal Register issued a rulemaking \8\ that
[[Page 83517]]
revised 1 CFR 51.5 to require that an agency detail in the preamble of
an NPRM the ways the materials it proposes to incorporate by reference
are reasonably available to interested parties, or how the agency
worked to make those materials reasonably available to interested
parties.
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\8\ 79 FR 66278 (Nov. 7, 2014).
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The following standards appear in the regulatory text of this NPRM
and have already been approved for the locations in which they appear:
(1) APA 87-1A: Standard for the Construction, Classification, Approval
and Transportation of Consumer Fireworks; (2) APA 87-1B: Standard for
the Construction, Classification, Approval, and Transportation of
Display Fireworks; and (3) APA 87-1C: Standard for the Construction,
Classification, Approval, and Transportation of Entertainment Industry
and Technical Pyrotechnics. No changes to these standards are proposed
in this NPRM.
III. Proposed Amendments
To streamline procedural requirements for fireworks manufacturers
and shippers, PHMSA proposes changes to the regulations relating to
PHMSA's explosives approval program specific to fireworks. PHMSA also
proposes changes to the HMR to address classification and packaging
inconsistencies for tracer ammunition. PHMSA will continue to use the
current approval process for Division 1.4G consumer fireworks in
accordance with requirements specified in Sec. Sec. 173.56(b), (f), or
(i), and 173.65. However, instead of the current approval process,
PHMSA proposes to permit manufacturers to self-certify classification
of certain ground and novelty device fireworks using the PHMSA portal,
as discussed previously and further below. Furthermore, PHMSA proposes
to revise the self-classification of inert projectile cartridges in
Sec. 173.56(h) to include tracer ammunition; amend 49 CFR 107.705 to
require use of the PHMSA portal as the only submittal option for
explosives approval applications; and amend 49 CFR 107.713 to clarify
that an approval holder may voluntarily terminate an approval and that
a show cause letter from PHMSA is unnecessary when approval holders
request to terminate approvals voluntarily.
In the PRIA supporting this rulemaking, PHMSA determined that the
aggregate benefits of the amendments proposed justify their aggregate
costs. If adopted in a final rule, the amendments proposed herein are
expected to reduce the paperwork burden on the regulated community and
PHMSA personnel since fewer paper-based explosives approval
applications will be submitted and processed. The overall net benefits
include a cost savings of 425 labor hours annually. See the PRIA for
additional information. These cost savings will not have a material
effect on the safety impact of PHMSA's explosives approval program.
A. Establishing Exceptions for Ground and Novelty Device Fireworks
PHMSA proposes to revise Sec. 173.64 to outline the exceptions for
ground and novelty device fireworks. Specifically, for certain low
hazard fireworks of these types, the section would authorize exception
from the standard explosive device approval process for classification
of Division 1.4G fireworks. These exceptions would be implemented by
establishing an automated process within the PHMSA portal for self-
certification, review of the information provided, and issuance of a
certificate with a unique identification (i.e., FW number). This
process may be used for the ground and novelty devices identified in
this rulemaking in lieu of the current explosive approval process.
PHMSA personnel would no longer be required to conduct a time-consuming
review of each application. The automated review process will require
the same information as currently required by the HMR. However, the
diagram of the device and chemical formulation sheets will not require
firsthand review by PHMSA personnel when compliance is certified by the
applicant. PHMSA believes this proposed change is consistent with our
Agency mission to protect the health and safety of the public and the
environment, and consistent with Executive Order 12866 \9\ that in part
calls for agencies to examine existing regulations and identify and
assess available alternatives to direct regulation. In this case, the
current regulations to ensure the safe transport of explosives require
explosives--such as fireworks--to be examined, classed, and approved by
PHMSA; and further that certain fireworks manufactured according to APA
87-1A may be certified for transportation by a DOT-approved FCA
instead. PHMSA believes that upon examination of the existing
regulation and in consideration of the low safety hazard associated
with certain ground and novelty devices, this proposal to streamline
the process authorizing their manufacture and transport by self-
certification benefits the public. PHMSA proposes that self-
certification will introduce efficiencies and maintain the safety of
transporting these fireworks under the HMR. To correspond to the
changes proposed in this NPRM, PHMSA proposes to add a definition for
``low hazard firework'' to Sec. 173.59.
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\9\ 58 FR 51735 (Oct. 4, 1993).
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Ground Devices
PHMSA proposes that ground device fireworks certified using the
PHMSA portal as conforming to the construction, formulation, and
packaging requirements in revised Sec. 173.64, will be authorized for
transport as ``UN0336, Fireworks, 1.4G.'' Seventeen ground devices will
be eligible for this new certification process: Chaser, Crackling Ball,
Crackling Strip, Crackling Tube, Firecracker, Flasher/Strobe, Flitter
Sparkler, Fountain Cone, Fountain Cylindrical, Fountain Nitrocellulose,
Ground Spinner, Illuminating Torch, Smoke, Snake, Specialty Device,
Wheel, and Wire Sparkler or Dipped Stick. Multi-tube devices,\10\ such
as cake and combination devices, are excluded from eligibility for
certification using the automated process.
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\10\ Multi-tube devices are devices with more than one tube that
contains fireworks (i.e., pyrotechnic effects).
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PHMSA proposes specific criteria for manufacturing (construction
and formulation) and packaging of these ground devices. The fireworks
would be subject to both general and specific requirements as presented
below in the table of Proposed Criteria for Ground Devices. The
proposed general requirements for ground devices are as follows:
<bullet> Devices must use chemicals in conformance with the
permitted and restricted chemical table in the edition of APA Standard
87-1A, Appendix 1, incorporated by reference in Sec. 173.64. The 2018
edition of the standard is currently incorporated by reference. Note
that all chemical specifications in the table are maximum limits.
<bullet> All reports are limited to 50 mg (0.050 g) of composition
per report.
<bullet> All devices are initiated by a safety fuse with the
exception of firecrackers, flitter sparklers, nitrocellulose fountains,
snakes, wire sparklers, or dipped sticks.
<bullet> All devices must be finished (they cannot be a component
intended to be used in another device).
<bullet> All devices must successfully pass a thermal stability
test as specified in Sec. 173.64(a)(2).
<bullet> Each device must be marked with the alphanumeric PHMSA-
assigned certification number (``FW number'') consisting of the letters
FW, followed by
[[Page 83518]]
the year and month issued, and a sequential number based on order of
issuance that year (e.g., FWYYYYMMSSSS). If the device is too small,
the package that contains the device must display the certification
number.
The specific requirements for each of the 17 eligible ground device
types are as follows:
Proposed Criteria for Ground Devices
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Device Definition Specification \11\ Special conditions
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Chaser............................... Consists of a paper or 20 total grams of None.
cardboard tube, which chemical composition,
vents out the fuse end with multiple reports
of the tube. permitted.
Crackling Ball....................... Consists of a spherical 20 total grams of Inner packaging cannot
ball that contains chemical composition, exceed 72 grams of
small granules of with no reports composition.
chemical composition permitted.
that upon ignition
produce sparks and/or
a crackling effect.
Crackling Strip...................... Consists of small 20 total grams of Inner packaging cannot
granules of chemical chemical composition, exceed 72 grams of
composition adhered to with no reports composition.
and encased in a paper permitted.
or cardboard wrapping
that upon ignition
produce sparks and/or
a crackling effect.
Crackling Tube....................... Consists of a tube that 20 total grams of Inner packaging cannot
contains small chemical composition, exceed 72 grams of
granules of chemical with no reports composition.
composition that upon permitted.
ignition produce
sparks and/or a
crackling effect.
Firecracker.......................... Consists of a small 50 milligrams of Multiple firecrackers
paper-wrapped or chemical composition can be fused together
cardboard tube that per firecracker. to form a string.
produces a single There is no limit on
report. number of firecrackers
in a string.
Flasher/Strobe....................... Consists of a paper- 5 total grams of Inner packaging cannot
wrapped or cardboard chemical composition, exceed 60 grams of
tube that produces a with no reports composition.
crackling/flashing/ permitted.
strobing light effect.
Flitter Sparkler..................... Consists of a paper or 25 total grams of None.
cardboard tube chemical composition,
attached to a stick or with no reports
wire. Upon ignition, permitted..
the device produces a Formulations containing
shower of sparks, a chlorates are limited
colored flame and/or a to 4 grams with no
crackling effect. more than 15 percent
of the formulations
being chlorates.
Fountain (Cone)...................... Consists of a conical 50 total grams of None.
paper or cardboard chemical composition,
container that upon with no reports
ignition produces a permitted.
shower consisting of
any combination of
colored sparks, color
flame, crackle, smoke,
whistle and/or micro
star effects.
Fountain (Cylindrical)............... Consists of a paper or 100 total grams of None.
cardboard tube that chemical composition,
upon ignition produces with no reports
a shower consisting of permitted.
any combination of
colored sparks, color
flame, crackle, smoke,
and whistle or micro
star effects.
Fountain (Nitrocellulose)............ Consists of a paper or 15 total grams of None.
cardboard cone or tube chemical composition,
device that produces a with no reports
shower of small permitted.
sparks, color, and
flame as its primary
effect using
nitrocellulose as the
major chemical
component.
Ground Spinner....................... Consists of a paper or 20 total grams of Multiple ground
cardboard tube that chemical composition, spinners can be fused
upon ignition emits a with reports permitted. together to form a
shower of colored string. Strings are
sparks that vents out limited to 20 grams of
of an orifice, causing total composition.
the device to spin
rapidly on the ground.
Illuminating Torch................... Consists of a paper or 100 total grams of None.
cardboard tube that chemical composition,
upon ignition, emits a with no reports
colored flame with or permitted.
without crackles or
sparks.
[[Page 83519]]
Smoke................................ Consists of a paper or 100 total grams of Multiple smoke devices
cardboard tube that chemical composition. can be fused together
upon ignition, emits All mixtures to form a string.
smoke as the primary containing a chlorate Strings are limited to
effect. must contain an equal 100 grams of total
amount or greater composition.
amount of a carbonate
or bicarbonate.
Snake................................ Consists of pressed 20 total grams of None.
pellet of pyrotechnic chemical composition,
composition that upon with no reports.
ignition, produces a Only formulations of
snake-like ash that nitrated asphalt,
expands in length as asphaltum, bitumen,
the composition is pitch, and/or tar with
consumed. an oxidizer (with or
without a binder) are
permitted.
Specialty Device..................... Consists of a paper or 20 total grams of No tube can contain
cardboard tube(s), chemical composition, more than 2 grams of
e.g., in the shape of with reports permitted. composition; tubes
an animal or a small cannot contain aerial
vehicle, that produces components or internal
multiple effects. shells.
Wheel................................ Consists of a paper or 200 total grams of None.
cardboard tube placed chemical composition,
on the ground or with no reports.
attached to a post, by No tube can contain
means of a nail, more than 60 total
spike, or string. Upon grams of composition,
ignition, the wheel which includes a 20
rotates producing a gram propellant limit
shower of sparks, per tube.
color, crackling, Tubes cannot contain
flame, or whistle aerial components..
effects. Handles are not
permitted..
Wire Sparkler or Dipped Stick........ Consists of a metal 100 total grams of Inner packaging cannot
wire or wood dowel chemical composition, exceed 120 grams of
coated with a chemical with no reports composition.
composition. Upon permitted.
ignition, the device Formulations containing
produces a shower of chlorates are limited
sparks, a colored to four grams with no
flame, and/or a more than 15 percent
crackling effect. of the formulations
being chlorates.
----------------------------------------------------------------------------------------------------------------
Currently, manufacturers may submit low hazard fireworks approvals
through the PHMSA portal, email, or mail, although all applications in
the past several years have been through the PHMSA portal. A
manufacturer follows a multi-step process to receive a certificate
using PHMSA's automated process for review of low hazard fireworks.
First, the applicant must register with PHMSA to create an account to
use the PHMSA portal and provide the following contact information:
company name, contact person, title, address, phone, and email address;
manufacturing location; and U.S. agent (if applicable), address, phone,
and email Address. A unique profile is created for each applicant based
on their email address, which allows repeated access. If already
registered with the PHMSA portal, persons must ensure all necessary
information is provided to allow for self-certification. Applicants are
required to create complex passwords in accordance with DOT's password
requirements.
---------------------------------------------------------------------------
\11\ This column describes the chemical composition weight
limits per tube and whether reports are permitted.
---------------------------------------------------------------------------
Then, the applicant must provide specific information about a
device and certify the construction, chemical composition, and
packaging are in accordance with the HMR. This step requires the
applicant to respond to the following questions:
<bullet> What is the name and/or product code of the device? (Must
be unique.)
<bullet> What is the category of the ground device? (There will be
a drop down menu with the 17 authorized ground devices.)
<bullet> What is the maximum weight in grams of chemical
composition in the device?
<bullet> Does the device contain a report? (List how many reports.)
<bullet> What is the maximum weight in milligrams of any single
report in the device?
<bullet> What is the total report weight in milligrams in the
device?
<bullet> Did the device pass a thermal stability test?
<bullet> Does the device comply with the Permitted and Restricted
Chemicals Table found in the APA Standard 87-1A, Appendix 1, currently
incorporated by reference in Sec. 173.64?
<bullet> Does the device use a safety fuse for ignition?
<bullet> Does the device meet one of the descriptions listed in
Sec. 173.64?
<bullet> Do you certify the device will be manufactured and
transported in accordance with all the statements you attested to
above?
Finally, the chemical composition and diagram of the ground device
must be entered into and uploaded to the PHMSA portal. A certificate
will be issued for each device following the successful completion of
the process. The certificate will contain the unique alphanumeric
certification number described above.
Novelty Devices
Similarly, PHMSA proposes that novelty devices (i.e., novelties)
certified using the PHMSA portal as conforming to the construction,
formulation, and packaging requirements in revised Sec. 173.64 will be
authorized for transport and not subject to further regulation except
for air transport. Although these novelty devices are considered
Division 1.4 fireworks, consistent with the guidance discussed in
Section I.A and as a condition for self-certification, novelty devices
will be classed for transport as ``UN3178, Flammable solid, inorganic,
n.o.s. (Novelties), 4.1, PG II,'' when transported internationally or
by
[[Page 83520]]
air. Seven novelties will be eligible for this new certification
process: Booby Trap/Pull Apart, Novelty Flitter Sparkler, Party Popper,
Novelty Snake, Snapper, Novelty Wire Sparkler or Novelty Dipped Stick,
and Novelty Smoke Device. Therefore, manufacturers may receive a
certification for international transportation when it is required.
Consistent with the 2015 guidance document, PHMSA considers certain
novelties--identified in this NPRM as excepted from further
regulation--as explosives under the HMR, subject to certain
transportation conditions. However, PHMSA acknowledges that this
exception is unique to the United States and complicates transportation
of these fireworks into or out of the United States. Therefore, to
facilitate international transportation of novelties, PHMSA proposes to
issue a unique identifier number (FW number) as part of the automated
self-certification process. This process facilitates the certification
process and movement of novelty devices outside of the United States
where they are classified the same way but not offered the same
exceptions.
Novelties must comply with both the general and specific
requirements for manufacture and packaging as provided in the table of
Proposed Criteria for Novelties. The proposed general requirements for
novelty devices are as follows:
<bullet> Devices that do not list specific chemical restrictions
must use chemicals in conformance with the permitted and restricted
chemical table in the APA Standard 87-1A, Appendix 1, incorporated by
reference in Sec. 173.64. The 2018 edition is currently incorporated
by reference. Note that all chemical specifications in the table are
maximum limits.
<bullet> No reports are permitted in novelties.
<bullet> Smoke devices must be initiated by a fuse.
<bullet> Devices must be finished and packaged in the inner
packagings.
<bullet> All novelties must successfully pass a thermal stability
test specified in Sec. 173.64(a)(2).
<bullet> Each device must be marked with the alphanumeric PHMSA-
assigned certification number (FW number), followed by the year and
month issued, and a sequential number based on order of issuance that
year (e.g., FWYYYYMMSSSS). If the device is too small, the package that
contains the device must display the certification number.
The specific requirements for each of the seven novelty types is as
follows:
Proposed Criteria for Novelties
----------------------------------------------------------------------------------------------------------------
Novelty Definition Specifications Special conditions
----------------------------------------------------------------------------------------------------------------
Booby Trap/Pull Apart................ Device that is actuated 0.016 total grams of Inner packages must not
by means of friction. chemical composition, contain more than 12
Pulling a string or which is limited to devices.
strings apart barium, potassium, and/
activates the device, or sodium chlorate
producing a noise with red phosphorus.
effect.
Novelty Flitter Sparkler............. Consists of a paper or 5 total grams of Inner packages must not
cardboard tube chemical composition, contain more than 8
attached to a stick or with no reports devices, and an
wire. Upon ignition, permitted. ignition fuse is
the device produces a Formulations permitted.
shower of sparks, a containing chlorates
colored flame, and/or are limited to 4 grams
a crackling effect. with no more than 15
percent of the
formulation being
chlorates.
Party Poppers........................ Device that is actuated 0.016 total grams of Inner packages must not
by means of friction. chemical composition, contain more than 72
Pulling a string or which is limited to devices.
trigger activates the barium, potassium, and/
device, producing a or sodium chlorate
noise effect and with red phosphorus.
releasing paper
streamers or confetti.
Common examples
resemble champagne
bottles and toy
pistols.
Novelty Snakes and Glow-Worms........ Consists of pressed 2 total grams of Inner packaging must
pellet of pyrotechnic chemical composition. not contain more than
composition that upon Only formulations of 25 devices
ignition, produce a nitrated asphalt,
snake-like ash that asphaltum, bitumen,
expands in length as pitch, and/or tar with
the composition is an oxidizer (with or
consumed. without a binder) are
permitted.
Snappers............................. Consists of small, 0.001 total grams of Inner packages must not
paper-wrapped items. silver fulminate contain more than 50
When dropped, the coated on small bits devices with sawdust
device activates, of sand or gravel. or other impact
producing a noise absorbing materials.
effect.
Novelty Wire Sparkler or Novelty Consists of a metal 25 total grams of Inner packages must not
Dipped Stick. wire or wood dowel chemical composition, contain more than 8
coated with a chemical with no reports devices.
composition. Upon permitted.
ignition, the device Formulations
produces a shower of containing
sparks, a colored perchlorates are
flame, and/or a limited to 5 grams.
crackling effect. Formulations
containing chlorates
are limited to 4 grams
with no more than 15
percent of the
formulations being
chlorates.
[[Page 83521]]
Novelty Smoke Device................. Consists of a paper or 5 total grams of Inner packages must not
cardboard tube that chemical composition, contain more than 72
upon ignition, emits with no reports devices.
smoke as the only permitted. All
effect. mixtures containing a
chlorate must contain
an equal amount or
greater amount of a
carbonate or
bicarbonate (e.g.
calcium carbonate,
sodium bicarbonate).
----------------------------------------------------------------------------------------------------------------
Novelties must be in inner packagings that must be further packed
in strong outer packagings. The packages must conform to the
requirements of Sec. 173.24. The maximum gross weight of a completed
package may not exceed 30 kilograms (66 pounds). Additionally, each
outer package, and an overpack if used, must be plainly marked with
``NOVELTIES, IN CONFORMANCE WITH Sec. 173.64, NOT REGULATED, EXCEPT
WHEN TRANSPORTED BY AIR.'' When novelties are transported by air, they
must be classed and described as ``UN3178, Flammable solid, inorganic,
n.o.s. (Novelties), 4.1, PG II,'' and packaged for transport
accordingly.
Similar to ground devices, an applicant will follow a multi-step
process to self-certify using PHMSA's automated process for review of
low hazard fireworks. First, the applicant must register with PHMSA to
create an account for use of the PHMSA portal and provide the following
contact information: company name, contact person, title, address,
phone, and email address; manufacturing location; and U.S. agent (if
applicable), address, phone, and email address. A unique profile is
created for each applicant based on their email address, which allows
repeated access. If already registered with the PHMSA portal, persons
must ensure all necessary information is provided to allow self-
certification. Applicants are required to create complex passwords in
accordance with DOT's password requirements.
Then, the applicant must provide the specific information about a
novelty and certify that the construction, chemical composition, and
packaging are in accordance with the HMR. This step requires the
applicant to respond to the following questions:
<bullet> What is the name and/or product code of the device? (Must
be unique.)
<bullet> What is the category of the novelty? (There will be a
drop-down menu with the seven authorized novelties.)
<bullet> What is the maximum weight in grams of chemical
composition in the device?
<bullet> Did the device pass the thermal stability test described
in 49 CFR 173.64(a)(2)?
<bullet> Does the device comply with the Permitted and Restricted
Chemicals Table found in the APA Standard 87-1A, Appendix 1, currently
incorporated by reference in Sec. 173.64?
<bullet> Does the novelty comply with the specific restrictions
listed in the Table of Authorized Novelty Devices and Specifications?
<bullet> Does the device use a safety fuse for ignition?
<bullet> Does the novelty meet a device description listed in Sec.
173.64?
<bullet> Do you certify the device will be manufactured and
transported in accordance with all the statements attested to above?
Finally, the chemical composition and diagram must be entered into
and uploaded to the PHMSA portal. A certificate will then be issued for
each novelty following the successful completion of the process. The
certificate will contain the unique alphanumeric certification number
described above. The certificate will indicate the description and
classification of the device as ``UN3178, Flammable solid, inorganic,
n.o.s. (Novelties), 4.1, PG II'' for international transportation and
domestic air transportation, and that it is not regulated as a Class 1
explosive when transported domestically by vessel, highway, or rail.
Fireworks Identification Scheme
As a baseline, fireworks must be approved and assigned an
explosives approval number by PHMSA (EX number) based on actual testing
and classification prior to transportation to, from, and within the
United States. However, Sec. 173.64 permits Division 1.3G and 1.4G
fireworks to be approved without prior examination based on certain
conditions, including compliance with the provisions of the 2018 APA
Standards 87-1A, 1B, and 1C, which are incorporated by reference in
Sec. 171.7. Further, Sec. 173.65 permits--in lieu of an approval--
Division 1.4G consumer fireworks (as defined in Sec. 171.8) to be
certified by a DOT-approved FCA. After the FCA reviews the consumer
fireworks application and certifies it meets the requirements, the FCA
assigns an FC number.
However, in this NPRM, PHMSA is proposing to streamline the process
for approval or certification of low hazard fireworks by allowing self-
certification using an online application in the PHMSA portal with an
automated process for review and issuance of a certification. This
automated process may be used for the low hazard fireworks identified
in this rulemaking in lieu of the current process and would no longer
require PHMSA or FCA personnel to conduct time-consuming reviews of
each application or impose a cost on manufacturers who opt to use an
FCA to certify these fireworks. Manufacturers of fireworks that meet
the required criteria for the construction, formulation, and packaging
of these low hazard fireworks--specifically discussed in Section II.
Proposed Amendments--would certify compliance with specified conditions
and limitations online and receive a certificate with a unique
identifier number (FW number) for each firework type. The FW number
will identify a low hazard firework that has been certified through the
newly proposed automated approval process as specified in Sec. 173.64.
An example of an FW number would be ``FW2023100001'' consisting of the
letters FW, followed by the year and month issued, and a sequential
number based on order of issuance that year.
Given the long history and wide recognition of the EX and FC
numbering scheme, PHMSA seeks specific comments on the supply chain
implications, the economic impact and safety concerns associated with
the proposed FW numbering system, as well as comments on how to
implement the changes if they are adopted. For example, will the use of
different alpha designators (i.e., EX, FC and FW) pose complications or
confusion within the
[[Page 83522]]
transportation system? If so, please provide a suggested alternative to
FW.
B. Authorizing the Self-Classification of Tracer Ammunition
Section 173.56(h) authorizes self-classification of certain types
of small arms cartridges into Division 1.4S, provided certain
conditions are met. In particular, Sec. 173.56(h)(3) authorizes
ammunition with inert projectile or blank ammunition. Tracer ammunition
utilizes a small amount of pyrotechnic composition to provide visible
light upon exit from a gun barrel. Due to the presence of the
pyrotechnic composition, it is unclear whether tracer ammunition would
qualify as an ``inert'' projectile. However, there is a negligible
quantity of pyrotechnic composition in tracer ammunition compared to
the quantities of pyrotechnic material contained within the projectile
itself, and its presence neither increases the hazard in a bonfire test
nor makes unintentional initiation any more likely.
The difference in hazard between inert projectile cartridges and
the same cartridges with a small amount of pyrotechnic composition is
negligible. Furthermore, there are no additional concerns related to
tracer ammunition that justify exclusion from the self-classification
provision of Sec. 173.56(h)(3). Therefore, PHMSA proposes to amend
Sec. 173.56(h)(3) to also authorize self-classification of tracer
ammunition that meets all other criteria outlined in Sec.
173.56(h)(3).
C. Amending the Approvals Process
PHMSA currently provides several options for submittal of
applications for approvals including mail, email, fax, and the PHMSA
portal, although this latter method is not codified as an option. As
such, PHMSA proposes to amend 49 CFR 107.705 to include the PHMSA
portal as a submittal option for all approvals. Furthermore, PHMSA
proposes to make the PHMSA portal the only method for submittal and
acceptance of explosives approval applications, and to remove current
options to submit those applications via mail, email, or fax.
Transitioning to an all-electronic system will improve efficiency.
Delays often occur when PHMSA personnel must transcribe application
information into the portal database due to incomplete data, inability
to read handwritten materials, and so forth. Where missing data or
uncertainties are discovered, PHMSA personnel must follow up with the
applicant or otherwise reject an application, which causes further
delays. Electronic submissions will improve efficiency for the
applicant on the front end (data entry) and for PHMSA on the back end
(review and issuance of approval). The PHMSA portal provides online
access to PHMSA services, creating a single source for all Hazardous
Materials explosives applications and data. Persons need only to
register to create an account and access the portal.
Finally, PHMSA proposes to add a new paragraph 49 CFR 107.705(e) to
allow approval holders to request termination of approvals, and to
amend 49 CFR 107.713(c) to clarify that when an approval holder
voluntarily requests termination, PHMSA is not required to issue a show
cause letter.
IV. Section-by-Section Review
The following is a section-by-section review of the proposed
amendments to the HMR.
Part 107
Section 107.705
Section 107.705 prescribes the requirements for submitting
registrations, reports, and applications for approval. PHMSA proposes
revising paragraph (a)(1) to specify the PHMSA portal may also be used
to file all approval applications with PHMSA and is the only authorized
method for submitting explosives approval applications, and proposes
removing options to submit those explosives applications via mail,
email, or fax for all explosives approvals.
Section 107.713
Section 107.713 prescribes procedures for the issuance,
modification, and termination of approvals required by the HMR. PHMSA
proposes to revise 49 CFR 107.713(c) introductory text to indicate a
PHMSA show cause letter is not necessary for voluntary termination of
an approval; and add a new paragraph (e) to clarify approval holders
may voluntarily request termination of an approval. PHMSA will then
issue a termination letter, rather than a show cause letter.
Part 171
Section 171.8
Section 171.8 provides definitions and abbreviations. PHMSA
proposes to define the term ``FW number'' as a number preceded by the
prefix ``FW,'' assigned by PHMSA to a Division 1.4G Consumer firework
device that has been certified under the provisions of Sec. 173.64.
Part 173
Section 173.56
Section 173.56 prescribes the procedures for classification and
approval of new explosives. Small arms cartridges meeting the criteria
in paragraph (h) may be self-classified as Division 1.4S by the
manufacturer. PHMSA proposes to modify Sec. 173.56(h)(3) to provide
clarity that tracer ammunition with inert projectiles is also eligible
for self-classification as a Division 1.4S material provided all other
criteria outlined in Sec. 173.56(h) are met. This proposal will
maintain the current level of safety with the HMR by ensuring proper
understanding of what types of explosives may be classified or self-
classified.
Section 173.59
Section 173.59 provides informational descriptions of terms for
explosives. PHMSA is adding a separate term and description for ``low
hazard fireworks.'' This proposal will maintain the current level of
safety with the HMR by ensuring proper understanding of what explosives
may qualify for the low hazard fireworks exceptions.
Section 173.64
Section 173.64 prescribes classification and approval exceptions
from the standard explosives approval process for Division 1.3 and 1.4
fireworks. PHMSA proposes to revise Sec. 173.64 to include further
exceptions for low hazard consumer fireworks that qualify for self-
certification. Specifically, paragraph (b) will outline criteria for
self-certification of certain ground and novelty devices as Division
1.4 fireworks. Seven novelties will be eligible for self-certification
and exception from the HMR, and 17 ground devices will be eligible for
self-certification and classification as Division 1.4G fireworks. PHMSA
also proposes to make some editorial changes to paragraph (a)
consistent with revision to paragraph (b), such as adding a title to
paragraph (a) and clarifying further the reference to Sec. 173.65 for
certification of Division 1.4G consumer fireworks by an FCA. This
proposal will maintain the current level of safety with the HMR by
ensuring proper understanding of which ground and novelty devices may
qualify for this exception.
V. Regulatory Analyses and Notices
A. Statutory/Legal Authority
This NPRM is published under the authority of Federal Hazardous
Materials Transportation Act (HMTA; 49 U.S.C. 5101-5127). Section
5103(b)
[[Page 83523]]
of the HMTA authorizes the Secretary of Transportation to prescribe
regulations for the safe transportation of hazardous materials (HAZMAT)
in intrastate, interstate, and foreign commerce. The Secretary has
delegated the authority granted in the HMTA to the PHMSA Administrator
at 49 CFR 1.97(b).
B. Executive Orders 12866 and 14094; DOT Regulatory Policies and
Procedures
Executive Order 12866 (``Regulatory Planning and Review''), as
amended by Executive Order 14094 (``Modernizing Regulatory Review''
\12\), requires agencies to regulate in the ``most cost-effective
manner,'' to make a ``reasoned determination that the benefits of the
intended regulation justify its costs,'' and to develop regulations
that ``impose the least burden on society.'' Similarly, DOT Order
2100.6A (``Policies and Procedures for Rulemakings'') requires PHMSA
rulemaking actions include ``an assessment of the potential benefits,
costs, and other important impacts of the regulatory action,'' and (to
the extent practicable) the benefits, costs, and any significant
distributional impacts, including any environmental impacts.
---------------------------------------------------------------------------
\12\ 88 FR 21879 (Apr. 11, 2023).
---------------------------------------------------------------------------
Executive Order 12866 and DOT Order 2100.6A require PHMSA submit
``significant regulatory actions'' to the Office of Management and
Budget (OMB) for review. This rulemaking is not considered a
significant regulatory action under section 3(f) of Executive Order
12866 (as amended by Executive Order 14094) and therefore, was not
formally reviewed by OMB. This rulemaking is also not considered a
significant rule under DOT Order 2100.6A.
The following is a brief summary of costs, savings, and net
benefits of some of the amendments proposed in this notice. PHMSA has
developed a more detailed analysis of these costs and benefits in the
PRIA, a copy of which has been placed in the docket. PHMSA seeks public
comment on its proposed revisions to the HMR, and the preliminary cost
and benefit analyses in the PRIA.
PHMSA estimates the costs associated with permitting self-
certification of low-hazard fireworks are minimal. The actual standards
required by the HMR for low-hazard fireworks are not affected by this
rule change, merely allowing manufacturers to self-certify that the
products meet those standards. PHMSA estimates the self-certifying
application process for manufacturers will not add any additional time
burdens as the approval information required for an approval will not
be affected. PHMSA estimates approvals handled by PHMSA take
approximately two hours per application. Of that time 30 minutes are
required for data entry, 60 minutes for managerial review, and another
30 minutes for signature review and approval. Allowing self-
classification, therefore, would save PHMSA 425 labor hours annually.
PHMSA emphasizes the proposed amendment for tracer ammunition is
merely a formal codification and adoption of a policy in place since
2002. The proposed change would make the policy's definition into a
formal regulation. Considering the long-standing nature of the 2002
policy, there would be minimal burdens to formally adopting the policy
into the HMR.
C. Executive Order 13132
PHMSA analyzed this rulemaking in accordance with the principles
and criteria contained in Executive Order 13132 (Federalism) \13\ and
the Presidential Memorandum (Preemption).\14\ Executive Order 13132
requires agencies to assure meaningful and timely input by state and
local officials in developing regulatory policies that may have
``substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.''
---------------------------------------------------------------------------
\13\ 64 FR 43255 (Aug. 10, 1999).
\14\ 74 FR 24693 (May 22, 2009).
---------------------------------------------------------------------------
The proposed rule would not have substantial direct effects on the
States, the relationship between the national government and the
States, or the distribution of power and responsibilities among the
various levels of government. The HMTA contains an express preemption
provision at 49 U.S.C. 5125(a) that preempts State, local, and Tribal
requirements if: (1) compliance with such requirement makes compliance
with the DOT regulations issued under the authority of the HMTA not
possible; or (2) compliance with such requirement is an obstacle to
carrying out a regulation prescribed under the authority of the HMTA.
The HMTA also contains an express preemption provision at 49 U.S.C.
5125(b) that preempts State, local, and Tribal requirements on certain
covered subjects, unless the non-Federal requirements are
``substantively the same'' as the Federal requirements, including the
following subjects:
<bullet> The designation, description, and classification of
hazardous materials.
<bullet> The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials.
<bullet> The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
contents, and placement of those documents.
<bullet> The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material.
<bullet> The design, manufacture, fabrication, marking,
maintenance, recondition, repair, or testing of a packaging or
container represented, marked, certified, or sold as qualified for use
in transporting hazardous material.
This proposed rule addresses covered subject items (1) and (2) and
would preempt state, local, and tribal requirements not meeting the
``substantively the same'' standard. Any preemption results directly
from operation of 49 U.S.C. 5125. In addition, in this instance, the
preemptive effect of the proposed rule is limited to the minimum level
necessary to achieve the objectives of the HMTA under which the final
rule is promulgated. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply.
D. Executive Order 13175
PHMSA analyzed this rulemaking in accordance with the principles
and criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments'') \15\ and DOT Order
5301.1A (``Department of Transportation Tribal Consultation Policy and
Procedures''). Executive Order 13175 and DOT Order 5301.1A require DOT
Operating Administrations to assure meaningful and timely input from
Native American tribal government representatives in developing rules
that significantly or uniquely affect tribal communities by imposing
``substantial direct compliance costs'' or ``substantial direct
effects'' on such communities, or the relationship and distribution of
power between the Federal Government and Native American Tribes.
---------------------------------------------------------------------------
\15\ 65 FR 67249 (Nov. 9, 2000).
---------------------------------------------------------------------------
PHMSA assessed the impact of the rulemaking and determined that it
would not significantly or uniquely affect Tribal communities or Native
American Tribal governments. The changes to the hazardous materials
program procedures and HMR proposed in this NPRM would have broad,
national scope. PHMSA does not expect this rulemaking would
significantly or uniquely affect Tribal communities,
[[Page 83524]]
impose substantial compliance costs on Native American Tribal
governments, or mandate Tribal action. And because PHMSA expects the
rulemaking would not adversely affect the safe transportation of
hazardous materials generally, PHMSA does not expect it would entail
disproportionately high adverse risks for tribal communities. For these
reasons, the funding and consultation requirements of Executive Order
13175 and DOT Order 5301.1A apply. However, PHMSA solicits comment from
Native American tribal governments and communities on potential impacts
of the proposed rulemaking.
E. Regulatory Flexibility Act and Executive Order 13272
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
agencies to consider whether a rulemaking would have a ``significant
economic impact on a substantial number of small entities'' to include
small businesses; not-for-profit organizations that are independently
owned and operated and are not dominant in their fields; and
governmental jurisdictions with populations under 50,000. The
Regulatory Flexibility Act directs agencies to establish exceptions and
differing compliance standards for small businesses, where possible to
do so and still meet the objectives of applicable regulatory statutes.
Executive Order 13272 (``Proper Consideration of Small Entities in
Agency Rulemaking'') \16\ requires agencies to establish procedures and
policies to promote compliance with the Regulatory Flexibility Act and
to ``thoroughly review draft rules to assess and take appropriate
account of the potential impact'' of the rules on small businesses,
governmental jurisdictions, and small organizations. The DOT posts its
implementing guidance on a dedicated web page.\17\
---------------------------------------------------------------------------
\16\ 67 FR 53461 (Aug. 16, 2002).
\17\ DOT, ``Rulemaking Requirements Related to Small Entities,''
<a href="https://www.transportation.gov/regulations/rulemaking-requirements-concerning-small-entities">https://www.transportation.gov/regulations/rulemaking-requirements-concerning-small-entities</a> (last accessed June 17, 2021).
---------------------------------------------------------------------------
This proposed rule has been developed in accordance with Executive
Order 13272 and DOT's procedures and policies to promote compliance
with the Regulatory Flexibility Act to ensure that potential impacts on
small entities are considered properly. As explained above, this
proposed rule facilitates the transportation of hazardous materials by
streamlining the regulatory requirements for energetics manufacturers
and shippers while maintaining the current level of safety for
transportation of these items. Specifically, it proposes to amend the
classification and approval process of certain low-hazard Class 1
explosive materials (i.e., fireworks) and clarify classification
eligibility for ammunition with inert projectile that has a pyrotechnic
coating (i.e., tracers). Finally, this rulemaking proposes to require
use of the PHMSA portal, an online application, as the sole method to
submit explosives approval applications.
Therefore, PHMSA expects that these amendments will not, if
adopted, have a significant economic impact on a substantial number of
small entities. However, PHMSA solicits comments on the anticipated
economic impacts to small entities.
F. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.),
no person is required to respond to any information collection unless
it has been approved by OMB and displays a valid OMB control number.
Pursuant to 44 U.S.C. 3506(c)(2)(B) and 5 CFR 1320.8(d), PHMSA must
provide interested members of the public and affected agencies an
opportunity to comment on information and recordkeeping requests.
PHMSA has analyzed this NPRM in accordance with the Paperwork
Reduction Act. PHMSA currently accounts for information collection and
recordkeeping burdens under OMB Control Number 2137-0057 ``Approvals
for Hazardous Materials.'' In this NPRM, PHMSA proposes to revise Sec.
173.64 applicable to low hazard fireworks that may impact the burden
accounted for in OMB Control Number 2137-0057. The proposed addition in
Sec. 173.64 would require manufacturers to provide information in
association with pursuing allowance for the self-certification of
certain ground and novelty device fireworks as low hazard fireworks for
purposes of transportation. PHMSA analyzed this proposal and expects
the impact to be negligible as the information is the same information
currently required by the HMR, just in a different format.
PHMSA specifically requests comments on the information collection
and recordkeeping burdens associated with developing, implementing, and
maintaining these proposed requirements. Address written comments to
the DOT Docket Operations Office as identified in the ADDRESSES section
of this rulemaking. Comments regarding information collection burdens
must be received prior to the close of the comment period identified in
the DATES section of this rulemaking. In addition, you may submit
comments specifically related to the information collection burden to
the PHMSA Desk Officer, Office of Management and Budget, at fax number
202-395-674. Requests for a copy of this information collection should
be directed to Steven Andrews, Standards and Rulemaking Division (PHH-
10), Pipeline and Hazardous Materials Safety Administration, 1200 New
Jersey Avenue SE, Washington, DC 20590-0001. If these proposed
requirements are adopted in a final rule, PHMSA will submit the revised
information collection and recordkeeping requirements to OMB for
approval.
G. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et
seq.) requires agencies to assess the effects of Federal regulatory
actions on State, local, and Tribal Governments, and the private
sector. For any NPRM or final rule that includes a Federal mandate that
may result in the expenditure by State, local, or Tribal Governments,
or by the private sector of $100 million or more in 1996 dollars in any
given year, the agency must prepare, amongst other things, a written
statement that qualitatively and quantitatively assesses the costs and
benefits of the Federal mandate.
As explained in the PRIA, available for review in the docket, this
proposed rule does not impose unfunded mandates under the UMRA. As
explained in the PRIA, it is not expected to result in costs of $100
million or more in 1996 dollars to either State, local, or Tribal
Governments, or to the private sector in any one year. Therefore, the
analytical requirements of UMRA do not apply.
H. Draft Environmental Assessment
The National Environmental Policy Act of 1969 (NEPA), as amended
(42 U.S.C. 4321-4335),\18\ requires Federal agencies to consider the
environmental impacts of their actions in the decision-making process.
The purpose and function of NEPA is satisfied if Federal agencies have
considered relevant environmental information, and the public has been
informed regarding the decision-making process. Agencies must prepare
an environmental assessment (EA) for a proposed action that is not
likely to have significant effects or when significance is unknown, and
prepare a FONSI if, based on the EA, the agency determines not to
prepare an EIS because the proposed action will not
[[Page 83525]]
have significant effects. In accordance with these requirements, an
agency's EA must discuss: (1) the need for the action; (2) the
alternatives considered; (3) the environmental impacts of the proposed
action and alternatives; and (4) a listing of the agencies and persons
consulted before providing evidence for determining a FONSI. The draft
EA (DEA) and proposed FONSI for the proposed action in this rulemaking
are as follows. This DEA incorporates by reference the analysis
included in the preamble text above.
---------------------------------------------------------------------------
\18\ Also at 40 CFR parts 1501 to 1508.
---------------------------------------------------------------------------
1. Need for the Action
The changes in the explosives approval process, especially for
classification and approval of low hazard fireworks, are needed to
improve efficiency and provide regulatory clarification for offerors
and carriers.
2. Alternatives Considered
No Action Alternative
Under the no action alternative, the current process for acquiring
explosives approvals by hardcopy or email submission of application
documents would continue. Additionally, stakeholders would continue to
rely on previously issued guidance for classification and exception
from regulation for certain low hazards fireworks. Finally, it would
remain ambiguous whether tracer ammunition is eligible for self-
classification as a Division 1.4S explosive (i.e., the small arms
cartridges exceptions).
Proposed Action Alternative--Explosives Approval Program and Exceptions
for Divisions 1.3 and 1.4 Consumer Fireworks
Under this alternative, PHMSA would implement the proposed
amendments of this rule as fully addressed in the preamble and
regulatory text sections of this NPRM. However, a concise summary of
the proposed amendments include the following:
(1) Establishing exceptions for ground and novelty firework
devices.
(2) Authorizing the self-classification of tracer ammunition.
(3) Requiring electronic submittal of explosives approval
applications to include reference to the PHMSA portal, and to authorize
electronic submittal for all required approvals.
3. Environmental Impacts of Proposed Action and Alternatives
No Action Alternative
PHMSA expects the no action alternative to have no new impact on
the environment as the status quo would remain in place. Explosives
approval applications, including those for fireworks, would continue to
be processed using all authorized filing formats currently in place,
and manufacturers would continue to work within the scope of guidance
issued by PHMSA for exceptions from regulation for low hazard
fireworks. Additionally, classification of tracer ammunition as a
Division 1.4S would remain the same but clarity on whether a
manufacturer could self-classify would remain uncodified.
Proposed Action Alternative--Explosives Approval Program and Exceptions
for Divisions 1.3 and 1.4 Consumer Fireworks
Under this alternative, PHMSA would implement the proposed
amendments of this rule as fully addressed in the preamble and
regulatory text sections of this NPRM. The proposed amended regulatory
text would allow for a streamlining of procedural requirements for the
transportation of low hazard ground and novelty firework devices.
Specifically, PHMSA would allow an automated process within the PHMSA
portal for self-certification, review of the information provided, and
issuance of a certificate with a unique identification (i.e., FW
number). This process would eliminate the need for firsthand review by
PHMSA personnel when compliance is certified by the applicant. The
devices would still be subject to the same substantive testing and
materials requirements, including construction, formulation, and
packaging. Similarly, this NPRM proposes to clarify and codify existing
guidance that self-certification is authorized for inert projectile
cartridges coated with tracer composition and may be self-classified as
a Division 1.4S material provided all other criteria outlined in Sec.
173.56(h) are met. Although the proposal would reduce the hours PHMSA
personnel spend reviewing documents, the automated process is designed
to similarly ensure compliance. Furthermore, PHMSA will maintain
oversight of the automated process for low hazard fireworks through
PHMSA's QA/QC review program.
PHMSA also notes the difficulty in quantifying any environmental
impact of requiring electronic processing of information; codifying
approval and exception requirements for low hazard fireworks; and
clarifying authorized self-classification of tracer ammunition. The
changes proposed in this notice do not impact whether or not explosives
are manufactured and transported, but rather how explosives approval
applications are processed and how certain explosives may be
classified. The process is already occurring and the changes proposed
would primarily be about transitioning to an electronic format. For the
above reasons, PHMSA expects the proposed action alternative to have no
impact on the human environment, including public safety.
4. Agencies and Persons Consulted
PHMSA coordinated with the Federal Aviation Administration, the
Federal Motor Carrier Safety Administration, the Federal Railroad
Administration, and the U.S. Coast Guard in the development of this
proposed rule.
5. Environmental Justice
Executive Order 12898 (``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations'') \19\
directs Federal agencies to take appropriate and necessary steps to
identify and address disproportionately high and adverse effects of
Federal actions on the health or environment of minority and low-income
populations to the greatest extent practicable and permitted by law.
DOT Order 5610.2C (``Department of Transportation Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations'') establishes departmental procedures for effectuating
Executive Order 12898 promoting the principles of environmental justice
through full consideration of environmental justice principles
throughout planning and decision-making processes in the development of
programs, policies, and activities--including PHMSA rulemaking.
---------------------------------------------------------------------------
\19\ 59 FR 7629 (Feb. 16, 1994).
---------------------------------------------------------------------------
PHMSA has evaluated this proposed rule under Executive Order 12898
and DOT Order 5610.2C and preliminarily determined that it would not
cause disproportionately high and adverse human health and
environmental effects on minority and low-income populations. The
rulemaking is neither directed toward a particular population, region,
or community, nor is it expected to adversely impact any particular
population, region, or community. And insofar as the rulemaking would
not adversely affect the safe transportation of hazardous materials
generally, the proposed revisions would not entail disproportionately
high adverse risks for minority and low-income populations. This
preliminary determination is consistent with the recent Executive Order
14096 (``Revitalizing Our Nation's Commitment to Environmental Justice
for All''),\20\ by achieving several goals,
[[Page 83526]]
including continuing to deepen the Administration's whole of government
approach to environmental justice and to better protect overburdened
communities from pollution and environmental harms.
---------------------------------------------------------------------------
\20\ 88 FR 25251 (Apr. 26, 2023).
---------------------------------------------------------------------------
6. Proposed Finding of No Significant Impact
As discussed in this DEA as well as Section II of the notice, the
proposed actions of this rulemaking would introduce efficiencies to the
explosives approval process and the way certain low hazard Class 1
explosive materials are authorized for transportation, and provide
clarity on whether tracer ammunition for small arms cartridges may be
classed as Division 1.4S material without the explosives approval
process. The proposed actions would not cause environmental impact
because the changes proposed are procedural and not substantive, and no
reduction in compliance with HMR requirements are anticipated. There
may be a negligible impact by changing from paper documents to reliance
on electronic systems. Nothing is different between the approval and
transport of explosives and low hazard fireworks under the current
system and under the proposed system other than how applications are
processed. Similarly, nothing is different between the current
classification of tracer ammunition and the proposed action except how
classification is determined (i.e., either by formalized approval
classification or by self-classification). Therefore, PHMSA proposes
that, if adopted, this rulemaking will result in no significant impact
to the human environment. PHMSA welcomes feedback related to
environmental impacts that may result if the proposed requirements are
adopted, as well possible alternatives and their environmental impacts.
I. Privacy Act
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform any amendments to the hazardous materials
program procedures and the HMR considered in this rulemaking. DOT posts
these comments, without edit, including any personal information the
commenter provides, to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, as described in the
system of records notice (DOT/ALL-14 FDMS). DOT's complete Privacy Act
Statement is in the Federal Register,\21\ or on DOT's website at
<a href="https://www.dot.gov/privacy">https://www.dot.gov/privacy</a>.
---------------------------------------------------------------------------
\21\ 65 FR 19477 (Apr. 11, 2000).
---------------------------------------------------------------------------
J. Executive Order 13609 and International Trade Analysis
Executive Order 13609 (``Promoting International Regulatory
Cooperation'') \22\ requires that agencies consider whether the impacts
associated with significant variations between domestic and
international regulatory approaches are unnecessary or may impair the
ability of American business to export and compete internationally. In
meeting shared challenges involving health, safety, labor, security,
environmental, and other issues, international regulatory cooperation
can identify approaches that are at least as protective as those that
are or would be adopted in the absence of such cooperation.
International regulatory cooperation can also reduce, eliminate, or
prevent unnecessary differences in regulatory requirements.
---------------------------------------------------------------------------
\22\ 77 FR 26413 (May 4, 2012).
---------------------------------------------------------------------------
Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as
amended by the Uruguay Round Agreements Act (Pub. L. 103-465),
prohibits Federal agencies from establishing any standards or engaging
in related activities that create unnecessary obstacles to the foreign
commerce of the United States. Pursuant to the Trade Agreements Act,
the establishment of standards is not considered an unnecessary
obstacle to the foreign commerce of the United States, so long as the
standards have a legitimate domestic objective, such as providing for
safety, and do not operate to exclude imports that meet this objective.
The statute also requires consideration of international standards and,
where appropriate, that they be the basis for U.S. standards.
In developing requirements to allow manufacturers to self-certify
certain fireworks as meeting criteria for transportation as low hazard
fireworks in place of acquiring an explosives approval for
transportation, PHMSA has made assurances that the process facilitates
international transport. PHMSA realizes the absence of an approval and
the associated approval number provides for domestic exception from
regulation of certain low hazard novelty fireworks, and it has assessed
the effects of the proposed rule to ensure it does not cause
unnecessary obstacles to foreign trade. In fact, the proposed rule is
expected to facilitate international trade by harmonizing U.S. and
international requirements for the transportation of hazardous
materials. The rule is expected to reduce regulatory burdens and
minimize delays arising from having to comply with divergent regulatory
requirements. This rulemaking is consistent with Executive Order 13609
and PHMSA's obligations under the Trade Agreements Act, as amended.
K. National Technology Transfer and Advancement Act
The National Technology Transfer and Advancement Act of 1995 (15
U.S.C. 272 note) directs Federal agencies to use voluntary consensus
standards in their regulatory activities unless doing so would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., specification of
materials, test methods, or performance requirements) developed or
adopted by voluntary consensus standard bodies. This NPRM involves
voluntary consensus standards, which are discussed in Section I of this
NPRM.
L. Severability
The purpose of this proposed rule is to operate holistically in
addressing a panoply of issues related to safety hazards; the
classification and approval process for certain low-hazard fireworks;
permitting small arms cartridges to include tracer ammunition; and
allowing for voluntary termination of an explosive approval by the
approval holder. However, PHMSA recognizes that certain provisions
focus on unique topics. Therefore, PHMSA preliminarily finds that the
various provisions of this proposed rule are severable and able to
function independently if severed from each other. Thus, in the event a
court were to invalidate one or more of this proposed rule's unique
provisions, the remaining provisions should stand and continue in
effect. PHMSA seeks comment on which portions of this proposed rule
should or should not be severable.
M. Cybersecurity and Executive Order 14028
Executive Order 14028 (``Improving the Nation's Cybersecurity'')
\23\ expressed the Biden-Harris Administration policy that ``the
prevention, detection, assessment, and remediation of cyber incidents
is a top priority and essential to national and economic security.''
Executive Order 14028 directed the Federal Government to improve its
efforts to identify, deter, and respond to ``persistent and
increasingly sophisticated malicious cyber campaigns.'' PHMSA has
considered the effects of this NPRM and
[[Page 83527]]
determined its regulatory amendments will not materially affect the
cybersecurity risk profile for the classification and approval process
for certain low-hazard fireworks, for small arms cartridges to include
tracer ammunition, and the transportation of hazardous materials.
---------------------------------------------------------------------------
\23\ 86 FR 26633 (May 17, 2021).
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List of Subjects
49 CFR Part 107
Administrative practice and procedure, Hazardous materials
transportation, Packaging and containers, Penalties, Reporting and
recordkeeping requirements.
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Incorporation by reference, Reporting and recordkeeping
requirements.
49 CFR Part 173
Hazardous materials transportation, Incorporation by reference,
Packaging and containers, Radioactive materials, Reporting and
recordkeeping requirements.
In consideration of the foregoing, PHMSA proposes to amend 49 CFR
chapter I as follows:
PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES
0
1. The authority citation for part 107 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 Section
4; Pub. L. 104-121 Sections 212-213; Pub. L. 104-134 Section 31001;
Pub. L. 114-74 Section 701 (28 U.S.C. 2461 note); 49 CFR 1.81 and
1.97; 33 U.S.C. 1321.
0
2. In Sec. 107.705, revise paragraph (a)(1) to read as follows:
Sec. 107.705 Registrations, reports, and applications for approval.
(a) * * *
(1) Filings. (i) Submission methods. The registration, report, or
application may be filed with the Associate Administrator for Hazardous
Materials Safety, Pipeline and Hazardous Materials Safety
Administration, U.S. Department of Transportation, East Building, 1200
New Jersey Avenue SE, Washington, DC 20590-0001. Applications may be
filed using the PHMSA portal at: <a href="https://portal.phmsa.dot.gov/">https://portal.phmsa.dot.gov/</a> or
alternatively, may be filed with any attached supporting documentation
in an appropriate format by facsimile (fax) to: (202) 366-3753 or (202)
366-3308, or by electronic mail (email) to: <a href="/cdn-cgi/l/email-protection#70110000021f06111c0330141f045e171f06"><span class="__cf_email__" data-cfemail="d4b5a4a4a6bba2b5b8a794b0bba0fab3bba2">[email protected]</span></a>.
(ii) Explosive approval applications. Filing of explosives approval
and fireworks approval applications as well as certifications of low
hazard fireworks must be submitted, and will only be accepted, using
the PHMSA portal.
* * * * *
0
3. In Sec. 107.713, revise paragraph (c) introductory text and add
paragraph (e) to read as follows:
Sec. 107.713 Approval modification, suspension or termination.
* * * * *
(c) Except as provided in paragraphs (d) and (e) of this section,
before an approval is modified, suspended, or terminated, the Associate
Administrator notifies the holder in writing of the proposed action and
the reasons for it, and provides an opportunity to show cause why the
proposed action should not be taken.
* * * * *
(e) The Associate Administrator may terminate an approval at the
request of the approval holder based on the holder's determination that
it is no longer needed. The approval holder must submit the request in
writing to the Associate Administrator using the PHMSA portal at:
<a href="https://portal.phmsa.dot.gov/">https://portal.phmsa.dot.gov/</a>.
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
0
4. The authority citation for part 171 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section
4; Pub. L. 104-134, section 31001; Pub. L. 114-74 section 701 (28
U.S.C. 2461 note); 49 CFR 1.81 and 1.97.
0
5. In Sec. 171.8, add a definition for ``FW number'' in appropriate
alphabetical sequence to read as follows:
Sec. 171.8 Definitions and abbreviations.
* * * * *
FW number means a number preceded by the prefix ``FW'', assigned by
PHMSA to a Division 1.4G Consumer firework device that has been
certified under the provisions of Sec. 173.64 of this subchapter.
* * * * *
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS
0
6. The authority citation for part 173 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.96 and
1.97.
0
7. In Sec. 173.56, revise paragraph (h)(3) to read as follows:
Sec. 173.56 New explosives--definition and procedures for
classification and approval.
* * * * *
(h) * * *
(3) Ammunition (including tracer ammunition) with inert projectile,
or blank ammunition; and
* * * * *
0
8. In Sec. 173.59, add a definition for ``Low hazard firework'' in
alphabetical order to read as follows:
Sec. 173.59 Description of terms for explosives.
* * * * *
Low hazard firework. As listed in Sec. 173.64 of this subchapter,
are pyrotechnic articles of certain chemical composition, design, and
packaging that are not designed to leave ground level, contain no
aerial components, present a low explosive hazard during
transportation, and comply with any limits and requirements found
therein. Low hazard fireworks include ground and novelty devices.
* * * * *
0
9. Revise Sec. 173.64 to read as follows:
Sec. 173.64 Exceptions for Division 1.3 and 1.4 fireworks.
(a) Classification and approval. Notwithstanding the requirements
of Sec. 173.56(b), Division 1.3 and 1.4 fireworks may be classed and
approved by the Associate Administrator without prior examination and
offered for transportation if the conditions of this paragraph (a) are
met (see Sec. 173.65 for an alternate method to approve Division 1.4G
consumer fireworks using a DOT-approved Fireworks Certification
Agency):
(1) Fireworks must be manufactured in accordance with the
applicable requirements in APA 87-1A, 87-1B, and 87-1C (IBR, see Sec.
171.7 of this subchapter).
(2) The firework device must pass a thermal stability test
conducted by a third-party laboratory or the manufacturer. The test
must be performed by maintaining the device, or a representative
prototype of a large device such as a display shell, at a temperature
of 75 [deg]C (167 [deg]F) for 48 consecutive hours. When a device
contains more than one component, those components that could be in
physical contact with each other in the finished device must be placed
in contact with each other during the thermal stability test.
(3) The manufacturer applies in writing to the Associate
Administrator following the applicable requirements in APA 87-1A, 87-
1B, and 87-1C and is notified in writing by the Associate Administrator
that the fireworks have
[[Page 83528]]
been classed, approved, and assigned an EX number. Each application
must be complete and include all relevant background data and copies of
all applicable drawings, test results, and any other pertinent
information on each device for which approval is being requested. The
manufacturer must sign the application and certify that the device for
which approval is requested conforms to the appropriate APA Standard,
that the descriptions and technical information contained in the
application are complete and accurate, and, with respect to APA 87-1A,
that no duplicate application has been submitted to a fireworks
certification agency. If the application is denied, the manufacturer
will be notified in writing of the reasons for the denial. The
Associate Administrator may require that the fireworks be examined by
an agency listed in Sec. 173.56(b)(1) of this part.
(b) Additional exceptions for low hazard Division 1.4 consumer
fireworks. Low hazard fireworks are pyrotechnic articles of certain
chemical composition, design, and packaging such that they present a
low explosive hazard during transportation. Low hazard ground device
fireworks listed in the table to paragraph (b)(2) of this section and
meeting the specified conditions and limitations are eligible for self-
classification and transport as UN0336, Fireworks, Division 1.4G.
Further, certain low hazard novelty fireworks listed in the table to
paragraph (b)(3) of this section meeting the specified conditions and
limitations may be excepted from the requirements of this subchapter as
a Class 1 explosive material. Low hazard fireworks are not subject to
the explosives approval requirements of Sec. 173.56 or the DOT-
approved Fireworks Certification Agency requirements of Sec. 173.65.
(1) General requirements. No person may manufacture and offer for
transport a low hazard firework unless compliance with requirements of
this paragraph (b) has been certified with the Associate Administrator.
No person may accept for transport a low hazard firework that has not
been certified as specified in this section. If the person certifying
compliance is not a resident of the United States, the person must
designate an agent for service in accordance with Sec. 105.40 of this
chapter. Additionally, low hazard fireworks:
(i) Must successfully pass a thermal stability test as specified in
paragraph (a)(2) of this section;
(ii) May not be transported as a component part for another
firework or explosive; and
(iii) Must be marked with an FW number issued by the Associate
Administrator. If the firework is too small for the marking, the outer
package of the fireworks must be marked with the FW number.
(2) Requirements specific to ground firework devices. (i) Ground
devices must use chemicals in conformance with the permitted and
restricted chemical list in APA 87-1A, Appendix 1.
(ii) When permitted, all reports are limited to 50 mg of
composition per report.
(iii) Ground devices must be initiated by a fuse; however, a fuse
is not required for the following types: flitter sparklers, wire or
dipped sparklers, fountain (nitrocellulose), and snakes (glow worms).
(iv) Authorized ground devices, and their descriptions,
specifications, and special conditions for transport are set forth as
follows:
Table 1 to Paragraph (b)(2)--Authorized Ground Devices and Specifications
----------------------------------------------------------------------------------------------------------------
Type Description Specification Special conditions
----------------------------------------------------------------------------------------------------------------
Chaser............................... Consists of a paper or 20 grams total of None.
cardboard tube, which chemical composition,
vents out its fuse with multiple reports
hole. permitted (each report
limited to 50
milligrams).
Crackling Ball....................... Consists of a spherical 20 total grams of Inner packaging cannot
ball that contains chemical composition, exceed 72 grams of
small granules of with no reports composition.
chemical composition permitted.
that upon ignition
produce sparks and/or
a crackling effect.
Crackling Strip...................... Consists of small 20 total grams of Inner packaging cannot
granules of chemical chemical composition, exceed 72 grams of
composition adhered to with no reports composition.
and encased in a paper permitted.
or cardboard wrapping
that upon ignition
produce sparks and/or
a crackling effect.
Crackling Tube....................... Consists of a tube that 20 total grams of Inner packaging cannot
contains small chemical composition, exceed 72 grams of
granules of chemical with no reports composition.
composition that upon permitted.
ignition produce
sparks and/or a
crackling effect.
Firecracker.......................... Consists of a small 50 milligrams of Multiple firecrackers
paper-wrapped or chemical composition can be fused together
cardboard tube that per firecracker. to form a string.
produces a single There is no limit on
report. number of firecrackers
in a string.
Flasher/Strobe....................... Consists of a small 5 total grams of Inner packaging cannot
paper-wrapped or chemical composition, exceed 60 grams of
cardboard tube that with no reports composition.
produces a crackling/ permitted.
flashing/strobe light
effect.
Flitter Sparkler..................... Consists of a paper or 25 total grams of None.
cardboard tube chemical composition,
attached to a stick or with no reports
wire. Upon ignition, permitted.
the device produces a Formulations containing
shower of sparks, a chlorates are limited
colored flame, and/or to 4 grams with no
a crackling effect. more than 15 percent
of the formulation
being chlorates.
Fountain (Cone)...................... Consists of a paper or 50 total grams of None.
cardboard tube that chemical composition,
upon ignition produces with no reports
a shower consisting of permitted.
any combination of
colored sparks, color
flame, crackle, smoke,
whistle, or micro star
effects.
[[Page 83529]]
Fountain (Cylindrical)............... Consists of a paper or 100 total grams of None.
cardboard tube that chemical composition,
upon ignition produces with no reports
a shower consisting of permitted.
any combination of
colored sparks, color
flame, crackle, smoke,
whistle, or micro star
effects.
Fountain (Nitrocellulose)............ Consists of a cone or 15 total grams of None.
tube device that chemical composition,
produces a shower of with no reports
small sparks, color, permitted.
and flame as its
primary effect using
nitrocellulose as the
major chemical
component.
Ground Spinner....................... Consists of a paper or 20 total grams of Multiple ground
cardboard tube that chemical composition, spinners can be fused
upon ignition emits a with reports permitted together to form a
shower of sparks that (each report limited string. Strings are
vent out of an orifice to 50 milligrams). limited to 20 grams of
causing the device to total composition.
spin rapidly on the
ground.
Illuminating Torch................... Consists of a paper or 100 total grams of None.
cardboard tube that chemical composition,
upon ignition, emits a with no reports
colored flame with or permitted.
without crackles or
sparks.
Smoke................................ Consists of a paper or 100 total grams of Multiple smoke devices
cardboard tube that chemical composition. can be fused together
upon ignition emits All mixtures to form a string.
smoke as the primary containing a chlorate Strings are limited to
effect. must contain an equal 100 grams of total
amount or greater composition.
amount of a carbonate
or bicarbonate (e.g.,
calcium carbonate,
sodium bicarbonate).
Snake................................ Consists of pressed 20 total grams of None.
pellet of pyrotechnic chemical composition,
composition that upon with no reports. Only
ignition produce a formulations of
snake-like ash that nitrated asphalt,
expands in length as asphaltum, bitumen,
the composition is pitch, and/or tar with
consumed. an oxidizer (with or
without a binder) are
permitted.
Specialty Device..................... Consists of a paper or 20 total grams of None.
cardboard tube(s), chemical composition,
e.g., in the shape of with reports permitted
an animal or a small (each report limited
vehicle, that produces to 50 milligrams).
multiple effects. No tube can contain
more than 2 grams of
composition; tubes
cannot contain aerial
components or internal
shells.
Wheel................................ Consists of a paper or 200 total grams of None.
cardboard tube(s) chemical composition,
placed on the ground with no reports.
or attached to a post, No tube can contain
by means of a nail, more than 60 total
spike or string. Upon grams of composition,
ignition the wheel which includes a 20
rotates, producing a gram propellant limit
shower of sparks, per tube.
color, crackling, Tubes cannot contain
flame, or whistle aerial components.
effects.
Handles are not
permitted.
Wire Sparkler or Dipped Stick........ Consists of a metal 100 total grams of Composition weight per
wire or wood dowel chemical composition, inner packaging cannot
coated with a chemical with no reports exceed 120 grams.
composition. Upon permitted.
ignition, the device Formulations containing
produces a shower of chlorates are limited
sparks, a colored to 4 grams with no
flame, and/or a more than 15 percent
crackling effect. of the formulations
being chlorates.
----------------------------------------------------------------------------------------------------------------
(3) Requirements specific to novelty firework devices. Except for
transportation by air, novelty fireworks conforming to the requirements
of this paragraph (b)(3) are not subject to this subchapter. For air
transportation, novelty devices must be transported as required by this
subchapter for ``UN3178, Flammable solid, inorganic, n.o.s.
(Novelties), 4.1, PG II''.
(i) Novelty devices must use chemicals in conformance with the
permitted and restricted chemical list in APA Standard 87-1A, Appendix
1 (IBR, see Sec. 171.7 of this subchapter).
(ii) Inner packagings of novelty devices must be packaged in strong
outer packagings. The packages must conform to the requirements of
Sec. 173.24. The maximum gross weight of a completed package may not
exceed 30 kg (66 pounds).
(iii) Each outer package, and overpack if used, containing novelty
devices must be plainly marked ``NOVELTIES, IN CONFORMANCE WITH Sec.
173.64, NOT REGULATED, EXCEPT WHEN TRANSPORTED BY AIR''.
(iv) Authorized novelty devices, and their descriptions,
specifications, and special conditions for transport are set forth as
follows:
[[Page 83530]]
Table 2 to Paragraph (b)(3)--Authorized Novelty Devices and Specifications
----------------------------------------------------------------------------------------------------------------
Type Description Specifications Special conditions
----------------------------------------------------------------------------------------------------------------
Booby Trap/Pull Apart................ Is a device that is 0.016 total grams of Inner packages must not
actuated by means of chemical composition, contain more than 12
friction. Pulling a which is limited to devices.
string or strings barium, potassium, and/
apart activate the or sodium chlorate
device producing a with red phosphorus.
noise effect.
Novelty Flitter Sparkler............. Consists of a paper or 5 total grams of .......................
cardboard tube chemical composition,
attached to a stick or with no reports
wire. Upon ignition, permitted.
the device produces a Formulations
shower of sparks, a containing chlorates
colored flame, and/or are limited to 4 grams
a crackling effect. with no more than 15
percent of the
formulation being
chlorates.
Party Poppers........................ Is a device that is 0.016 total grams of Inner packages must not
actuated by means of chemical composition, contain more than 72
friction. Pulling a which is limited to devices.
string or trigger barium, potassium, and/
activates the device or sodium chlorate
producing a noise with red phosphorus.
effect and releasing
paper streamers or
confetti. Common
examples resemble
champagne bottles and
toy pistols.
Novelty Snakes and Glow-Worms........ Consists of pressed 2 total grams of Inner packaging must
pellet of pyrotechnic chemical composition. not contain more than
composition that upon Only formulations of 25 devices.
ignition, produce a nitrated asphalt,
snake-like ash that asphaltum, bitumen,
expands in length as pitch, and/or tar with
the composition is an oxidizer (with or
consumed. without a binder) are
permitted.
Snappers............................. Consists of small, 0.001 total grams of Inner packages must not
paper-wrapped items. silver fulminate contain more than 50
When dropped, the coated on small bits devices with sawdust
device activates, of sand or gravel. or other impact
producing a noise absorbing materials.
effect.
Novelty Wire Sparkler or Novelty Consists of a metal 25 total grams of Inner packages must not
Dipped Stick. wire or wood dowel chemical composition, contain more than 8
coated with a chemical with no reports devices.
composition. Upon permitted.
ignition, the device Formulations
produces a shower of containing
sparks, a colored perchlorates are
flame, and/or a limited to 5 grams.
crackling effect. Formulations
containing chlorates
are limited to 4 grams
with no more than 15
percent of the
formulations being
chlorates.
Novelty Smoke Device................. Consists of a paper or 5 total grams of Inner packages must not
cardboard tube that chemical composition, contain more than 72
upon ignition, emits with no reports devices.
smoke as the only permitted. All
effect. mixtures containing a
chlorate must contain
an equal amount or
greater amount of a
carbonate or
bicarbonate (e.g.,
calcium carbonate,
sodium bicarbonate).
----------------------------------------------------------------------------------------------------------------
(4) Recordkeeping requirements. In addition to the certification of
each low hazard firework in accordance with this section, the
manufacturer must maintain a record of the documents demonstrating
compliance with this section. Each record must clearly provide the FW
number assigned to the device certified. The record must contain the
following information at minimum: FW certification document, category
of device, drawing, chemical composition list, gram quantities, and if
applicable, U.S. agent of service information. The record must be
accessible at or through the principal place of business for five years
after the device is manufactured and must be made available, upon
request, to an authorized official of a Federal, State, or local
government agency at a reasonable time and location, not to exceed five
(5) business days.
Issued in Washington, DC, on November 17, 2023, under authority
delegated in 49 CFR 1.97.
William S. Schoonover,
Associate Administrator for Hazardous Materials Safety, Pipeline and
Hazardous Materials Safety Administration.
[FR Doc. 2023-25887 Filed 11-29-23; 8:45 am]
BILLING CODE 4910-60-P
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</html>Indexed from Federal Register on November 30, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.