Clarification on the Division 1.1 Fireworks Approvals Policy, 9865-9867 [2012-3894]
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Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations
one of a category of actions that do not
individually or cumulatively have a
significant effect on the human
environment. This rule involves
regulations which are editorial,
regulations concerning equipping of
vessels, and regulations concerning
vessel operation safety standards. This
rule is categorically excluded under
Section 2.B.2, Figure 2–1, paragraphs
(34)(a) and (d) of the Instruction and
under paragraph 6(a) of the ‘‘Appendix
to National Environmental Policy Act:
Coast Guard Procedures for Categorical
Exclusions, Notice of Final Agency
Policy’’ (67 FR 48243, July 23, 2002). An
environmental analysis checklist and a
categorical exclusion determination are
available in the docket where indicated
under ADDRESSES.
List of Subjects in 46 CFR Part 160
Marine safety, Incorporation by
reference, Reporting and recordkeeping
requirements.
For the reasons discussed in the
preamble, the Coast Guard amends 46
CFR part 160 as follows:
PART 160—LIFESAVING EQUIPMENT
1. The authority citation for part 160
continues to read as follows:
■
Authority: 46 U.S.C. 2103, 3306, 3703 and
4302; E.O. 12234, 45 FR 58801, 3 CFR, 1980
Comp., p. 277; 49 CFR 1.46.
2. Amend § 160.151–5 by adding
paragraphs (d)(5) and (d)(6) to read as
follows:
Incorporation by reference.
mstockstill on DSK4VPTVN1PROD with RULES
*
*
*
*
(d) * * *
(5) Annex 7 to MSC 87/26, Report of
the Maritime Safety Committee on its
Eighty-Seventh Session, ‘‘Resolution
MSC.293(87), Adoption of Amendments
to the International Life-Saving
Appliance (LSA) Code,’’ (adopted May
21, 2010), IBR approved for §§ 160.151–
7, 160.151–15, 160.151–17, 160.151–21,
160.151–29, and 160.151–33
(‘‘Resolution MSC.293(87)’’).
(6) Annex 9 to MSC 87/26, Report of
the Maritime Safety Committee on its
Eighty-Seventh Session, ‘‘Resolution
MSC.295(87), Adoption of Amendments
to the Revised Recommendation on
Testing of Life-Saving Appliances
(Resolution MSC.81(70)),’’ (adopted
May 21, 2010), IBR approved for
§§ 160.151–21, 160.151–27, 160.151–29,
160.151–31, and 160.151–57
(‘‘Resolution MSC.295(87)’’).
*
*
*
*
*
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§ 160.151–33
[Amended]
10. Amend § 160.151–33 by removing
the words ‘‘IMO LSA Code’’ wherever
they appear and adding, in their place,
the words ‘‘IMO LSA Code, as amended
by Resolution MSC.293(87)’’.
3. Amend § 160.151–7 by removing
the words ‘‘IMO LSA Code’’ wherever
they appear and adding, in their place,
the words ‘‘IMO LSA Code, as amended
by Resolution MSC.293(87)’’.
§ 160.151–15
§ 160.151–57
■
[Amended]
4. Amend § 160.151–15 by removing
the words ‘‘IMO LSA Code’’ wherever
they appear and adding, in their place,
the words ‘‘IMO LSA Code, as amended
by Resolution MSC.293(87)’’.
■
§ 160.151–17
[Amended]
5. Amend § 160.151–17 by removing
the words ‘‘IMO LSA Code’’ wherever
they appear and adding, in their place,
the words ‘‘IMO LSA Code, as amended
by Resolution MSC.293(87)’’.
■
[Amended]
11. Amend § 160.151–57 by removing
the words ‘‘IMO Revised
recommendation on testing’’ wherever
they appear and adding, in their place,
the words ‘‘IMO Revised
recommendation on testing, as amended
by Resolution MSC.295(87)’’.
■
Dated: February 1, 2012.
J.G. Lantz,
Director of Commercial Regulations and
Standards, U.S. Coast Guard.
[FR Doc. 2012–3869 Filed 2–17–12; 8:45 am]
BILLING CODE 9110–04–P
§ 160.151–21
[Amended]
6. Amend § 160.151–21 as follows:
a. Remove the words ‘‘IMO LSA
Code’’ wherever they appear and add, in
their place, the words ‘‘IMO LSA Code,
as amended by Resolution
MSC.293(87)’’; and
■ b. In paragraph (f), remove the words
‘‘IMO Revised recommendation on
testing’’ and add, in their place, the
words ‘‘IMO Revised recommendation
on testing, as amended by Resolution
MSC.295(87)’’.
■
■
7. Amend § 160.151–27 by removing
the words ‘‘IMO Revised
recommendation on testing’’ wherever
they appear and adding, in their place,
the words ‘‘IMO Revised
recommendation on testing, as amended
by Resolution MSC.295(87)’’.
§ 160.151–29
[Amended]
8. Amend § 160.151–29 as follows:
a. In the introductory text, remove the
words ‘‘IMO LSA Code’’ and add, in
their place, the words ‘‘IMO LSA Code,
as amended by Resolution
MSC.293(87)’’; and
■ b. In the introductory text, remove the
words ‘‘IMO Revised recommendation
on testing’’ and add, in their place, the
words ‘‘IMO Revised recommendation
on testing, as amended by Resolution
MSC.295(87)’’.
■
■
§ 160.151–31
[Amended]
9. Amend § 160.151–31 by removing
the words ‘‘IMO Revised
recommendation on testing’’ wherever
they appear and adding, in their place,
the words ‘‘IMO Revised
recommendation on testing, as amended
by Resolution MSC.295(87)’’.
■
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Fmt 4700
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
49 CFR Part 173
[Docket No. PHMSA–2011–0157; Notice No.
11–6]
Clarification on the Division 1.1
Fireworks Approvals Policy
Pipeline and Hazardous
Materials Safety Administration
(PHMSA), DOT.
ACTION: Clarification.
AGENCY:
[Amended]
■
■
*
[Amended]
■
§ 160.151–27
Subpart 160.151—Inflatable Liferafts
(SOLAS)
§ 160.151–5
§ 160.151–7
9865
In this document, PHMSA is
responding to comments received from
its initial Notice No. 11–6 clarifying
PHMSA’s policy regarding the fireworks
approvals program. Furthermore, in this
document PHMSA is restating its policy
clarification that it will accept only
those classification approval
applications for Division 1.1 fireworks
that have been examined and assigned
a recommended shipping description,
division, and compatibility group by a
DOT-approved explosives test
laboratory, or those that have been
issued an approval for the explosive by
the competent authority of a foreign
government acknowledged by PHMSA’s
Associate Administrator. This policy
clarification is intended to enhance
safety by ensuring that fireworks
transported in commerce meet the
established criteria for their assigned
classification, thereby minimizing the
potential shipment of incorrectly
classified or forbidden fireworks.
DATES: The policy clarification
discussed in this document is effective
February 21, 2012.
SUMMARY:
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9866
Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations
Mr.
Ryan Paquet, Director, Approvals and
Permits Division, Office of Hazardous
Materials Safety, (202) 366–4512,
PHMSA, 1200 New Jersey Avenue SE.,
Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
Table of Contents
I. Introduction
II. Background
III. List of Commenters, Beyond-the-Scope
Comments, and General Comments
IV. Summary of Policy Clarification
mstockstill on DSK4VPTVN1PROD with RULES
I. Introduction
The Hazardous Materials Regulations
(HMR; 49 CFR parts 171–180) require
that Division 1.1 fireworks must be
examined by a DOT-approved
explosives test laboratory and assigned
a recommended shipping description,
division, and compatibility group in
accordance with § 173.56(b). The tests
provided for the classification of
Division 1.1 fireworks specified in
§§ 173.57 and 173.58 describe the
procedures used to determine the
acceptance criteria and assignment of
class and division for all new
explosives. Further, the HMR also
permit Division 1.1 firework devices
that have been approved by the
competent authority of a foreign
government that PHMSA’s Associate
Administrator has acknowledged in
writing as acceptable in accordance
with § 173.56(g).
On September 27, 2011, PHMSA
published the initial Notice No. 11–6
(76 FR 59769) clarifying its policy,
consistent with the HMR, that all
Division 1.1 fireworks must undergo
examination by a DOT-approved
explosives examination laboratory or be
issued an approval for the explosive by
the competent authority of a foreign
government acknowledged by PHMSA’s
Associate Administrator. In today’s
document, PHMSA is responding to
comments received as a result of this
notice and is restating its policy
clarification on the fireworks approval
program.
II. Background
The HMR require that Division 1.1
fireworks must be examined by a DOTapproved explosives test laboratory and
assigned a recommended shipping
description, division, and compatibility
group in accordance with § 173.56(b).
The HMR also permit Division 1.1
firework devices that have been
approved by the competent authority of
a foreign government that PHMSA’s
Associate Administrator has
acknowledged in writing as acceptable
in accordance with § 173.56(g).
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Jkt 226001
According to § 173.56(j),
manufacturers of Division 1.3 and 1.4
fireworks, or their designated U.S.
agents, may apply for an explosives (EX)
classification approval without prior
examination by a DOT-approved
explosives test laboratory if the firework
device is manufactured in accordance
with APA Standard 87–1 (IBR, see
§ 171.7), and the device passes the
thermal stability test. Additionally, the
applicant must certify that the firework
device conforms to the APA Standard
87–1 and that the descriptions and
technical information contained in the
application are complete and accurate.
PHMSA has in the past, on a case-bycase basis, in accordance with
§ 173.56(i), approved some Division
1.1G fireworks without requiring testing
by a DOT-approved explosives
examination laboratory. PHMSA
evaluates each EX approval application
independently and has also required
Division 1.1G fireworks to undergo
examination testing by a DOT-approved
explosive examination lab prior to
issuing the EX approval.
While APA Standard 87–1 contains
two instances where Division 1.1
fireworks may be approved under the
standard, it does not call for the level of
testing required in the HMR, nor does it
provide testing and criteria to determine
when a firework ceases to be a Division
1.1 and becomes forbidden for transport.
In this document, PHMSA is
clarifying its policy that all Division 1.1
fireworks must undergo examination by
a DOT-approved explosives
examination laboratory or be approved
by a competent authority. Division 1.1
fireworks will not require UN Test
Method 6, as testing will be limited to
UN Test Method 4a(i) and 4b(ii), as is
specified in § 173.57(b). The
examination laboratory may request
additional information to make its
classification recommendation.
Additionally, PHMSA allows the
laboratory to make a classification
recommendation for Division 1.1
fireworks based on analogy.
PHMSA believes that by issuing
Division 1.1 fireworks approvals only
after a DOT-approved explosive
laboratory has examined and
recommended a classification, or an
approval has been issued by a
competent authority of a foreign
government acknowledged by PHMSA’s
Associate Administrator, it is ensuring
that fireworks transported in commerce
meet the established criteria for their
assigned classification, thereby
minimizing the potential shipment of
incorrectly classified or forbidden
fireworks.
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III. List of Commenters, Beyond-theScope Comments, and General
Comments
PHMSA received three comments in
response to the initial Notice No. 11–6.
The comments covered various topics
including, but not limited to,
transportation safety, general comments,
and economic impacts. One commenter
supported the clarification to the
fireworks policy in initial Notice 11–6,
while two commenters had reservations
about it. A summary of the comments
received is discussed below. The
comments, as submitted to the docket
for the initial Notice No. 11–6 (Docket
No. PHMSA–2011–0157), may be
accessed via https://www.regulations.gov
and were submitted by the following:
(1) Veolia ES Technical Solutions,
L.L.C.; PHMSA–2011–0157–0002.
(2) American Pyrotechnics
Association (APA); PHMSA–2011–
0157–0003.
(3) Kellner’s Fireworks Inc.; PHMSA–
201–0157–0004.
Beyond-the-Scope Comments
One commenter requests PHMSA
consider waste management of used or
defective fireworks when proposing any
amendments to regulations related to
the transport of fireworks. In this
document, PHMSA does not propose
any regulatory amendments; rather, we
are clarifying existing policy. While
PHMSA agrees environmental impacts
should be considered when proposing
amendments to regulations, no
regulatory changes were proposed in the
initial Notice; therefore, waste
management of fireworks is beyond the
scope of this document.
Another commenter acknowledges the
current prohibition in the HMR to
classify Division 1.1 fireworks under
§ 173.56(j), but requests that PHMSA
remove the terminology ‘‘Division 1.3
and Division 1.4’’ in § 173.56(j) to allow
PHMSA to grant approvals for all
fireworks manufactured in accordance
with APA Standard 87–1, regardless of
their classification. This document is a
clarification of current requirements and
does not propose any regulatory
amendments, rather, PHMSA is
clarifying existing policy; therefore this
request will be handled as a petition for
rulemaking and responded to
accordingly.
General Comments
Transportation Safety
With regard to transportation safety,
PHMSA received one comment in
support of its effort to clarify the
classification of Division 1.1 fireworks.
Specifically, this commenter noted that
E:\FR\FM\21FER1.SGM
21FER1
Federal Register / Vol. 77, No. 34 / Tuesday, February 21, 2012 / Rules and Regulations
PHMSA’s oversight of the classification
of Division 1.1 fireworks is preferable
due to the increased safety hazards
involved in the management of Division
1.1 fireworks.
Another commenter opposes
PHMSA’s clarification and indicates
that Division 1.1 fireworks approved
under APA Standard 87–1 have not
resulted in any incidents that would
cause it to reconsider its practice.
Although to date there have been no
known incidents involving the
transportation of Division 1.1 fireworks,
there are known occurrences of
fireworks being transported that contain
chemical compositions rendering them
forbidden from transportation. The APA
Standard 87–1 does not provide the
testing and criteria to determine when a
device ceases to be a Division 1.1
firework device and becomes forbidden
from transportation. Testing Division
1.1 fireworks devices as prescribed in
the HMR, enables a determination when
a firework device ceases to be a Division
1.1 device and becomes forbidden.
Furthermore, this clarification will
provide oversight to ensure that
Division 1.1 fireworks meet the
established criteria for their assigned
classification, thereby minimizing the
potential shipment of incorrectly
classified or forbidden fireworks.
Economic Impact
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One commenter opposes the policy
clarification because they indicate that
fireworks currently classified as
Division 1.1G devices have not changed
in many years, even though the
regulations governing their
transportation have changed. The
commenter states that a fireworks
device that was previously considered
to be 1.3G under APA Standard 87–1 is
now considered a 1.1G, but the device
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Jkt 226001
is still manufactured the same way as it
was when the device was classed as a
1.3G.
In December 1991, PHMSA (Research
and Special Programs Administration)
revised the HMR to align its
classification system for fireworks with
the U.N. Recommendations on the
Transport of Dangerous Goods. Under
the previous system, fireworks were
classified as Class A, B, or C—Class A
fireworks were considered to be the
most hazardous and Class C fireworks
were considered to be least hazardous.
For the most part, Class A fireworks
were reclassed as Division 1.1, Class B
fireworks were reclassed as Division 1.3,
and Class C fireworks were reclassed as
Division 1.4. This resulted in some
fireworks with shell diameters as great
as 16 inches being classed as Division
1.3 fireworks. In the 2001–2002 edition
of the APA Standard 87–1, fireworks
with diameters greater than 10 inches
were all classified as Division 1.1
fireworks. Prior to that edition of the
APA Standard 87–1, aerial shell
firework devices not classed as a 1.4G
were classed as a 1.3G regardless of size
or quantity of flash composition. This
change was made in the interest of
safety.
While PHMSA has approved Division
1.1G fireworks manufactured in
accordance with the APA Standard 87–
1, it evaluates each EX approval
independently and has also required
Division 1.1G fireworks to be examined.
Further, the commenter states that the
testing for these items can cost upwards
of $8,000 and that the cost will put
fireworks companies intending to sell
Division 1.1G fireworks devices at a
major loss before the product is
available for sale. To the contrary, thirdparty labs have indicated that the cost
of performing these tests is considerably
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9867
less—depending on a number of
variables, PHMSA estimates that
required tests would cost less than
$5,400.
Also, as indicated in the initial
document, if a fireworks device is
classed and approved as a Division 1.1
firework, the UN Test Method 6 is not
required; rather, testing will be limited
to UN Test Method 4a(i) and 4b(ii), as
is specified in § 173.57(b). Further,
PHMSA allows the laboratory to make a
classification recommendation for
Division 1.1 fireworks based on analogy.
This document is intended to clarify
current regulations: that only Division
1.3 and 1.4 fireworks devices may be
approved in accordance with the APA
Standard 87–1.
IV. Summary of Policy Clarification
Based on the comments received and
PHMSA’s responses to those comments,
henceforth, PHMSA will not accept
Division 1.1 fireworks approval
applications submitted under the APA
Standard 87–1. Division 1.1 fireworks
must be examined and assigned a
recommended shipping description,
division, and compatibility group by a
DOT-approved explosives test
laboratory, or issued an approval for the
explosive by the competent authority of
a foreign government acknowledged by
PHMSA’s Associate Administrator. On a
case-by-case basis under 173.56(i),
PHMSA will evaluate them for approval
without testing.
Issued in Washington, DC, on February 14,
2012 under authority delegated in 49 CFR
part 1.
Magdy El-Sibaie,
Associate Administrator for Hazardous
Materials Safety, Pipeline and Hazardous
Materials Safety Administration.
[FR Doc. 2012–3894 Filed 2–17–12; 8:45 am]
BILLING CODE 4910–60–P
E:\FR\FM\21FER1.SGM
21FER1
]]>Agencies
[Federal Register Volume 77, Number 34 (Tuesday, February 21, 2012)]
[Rules and Regulations]
[Pages 9865-9867]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-3894]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 173
[Docket No. PHMSA-2011-0157; Notice No. 11-6]
Clarification on the Division 1.1 Fireworks Approvals Policy
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Clarification.
-----------------------------------------------------------------------
SUMMARY: In this document, PHMSA is responding to comments received
from its initial Notice No. 11-6 clarifying PHMSA's policy regarding
the fireworks approvals program. Furthermore, in this document PHMSA is
restating its policy clarification that it will accept only those
classification approval applications for Division 1.1 fireworks that
have been examined and assigned a recommended shipping description,
division, and compatibility group by a DOT-approved explosives test
laboratory, or those that have been issued an approval for the
explosive by the competent authority of a foreign government
acknowledged by PHMSA's Associate Administrator. This policy
clarification is intended to enhance safety by ensuring that fireworks
transported in commerce meet the established criteria for their
assigned classification, thereby minimizing the potential shipment of
incorrectly classified or forbidden fireworks.
DATES: The policy clarification discussed in this document is effective
February 21, 2012.
[[Page 9866]]
FOR FURTHER INFORMATION CONTACT: Mr. Ryan Paquet, Director, Approvals
and Permits Division, Office of Hazardous Materials Safety, (202) 366-
4512, PHMSA, 1200 New Jersey Avenue SE., Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. Background
III. List of Commenters, Beyond-the-Scope Comments, and General
Comments
IV. Summary of Policy Clarification
I. Introduction
The Hazardous Materials Regulations (HMR; 49 CFR parts 171-180)
require that Division 1.1 fireworks must be examined by a DOT-approved
explosives test laboratory and assigned a recommended shipping
description, division, and compatibility group in accordance with Sec.
173.56(b). The tests provided for the classification of Division 1.1
fireworks specified in Sec. Sec. 173.57 and 173.58 describe the
procedures used to determine the acceptance criteria and assignment of
class and division for all new explosives. Further, the HMR also permit
Division 1.1 firework devices that have been approved by the competent
authority of a foreign government that PHMSA's Associate Administrator
has acknowledged in writing as acceptable in accordance with Sec.
173.56(g).
On September 27, 2011, PHMSA published the initial Notice No. 11-6
(76 FR 59769) clarifying its policy, consistent with the HMR, that all
Division 1.1 fireworks must undergo examination by a DOT-approved
explosives examination laboratory or be issued an approval for the
explosive by the competent authority of a foreign government
acknowledged by PHMSA's Associate Administrator. In today's document,
PHMSA is responding to comments received as a result of this notice and
is restating its policy clarification on the fireworks approval
program.
II. Background
The HMR require that Division 1.1 fireworks must be examined by a
DOT-approved explosives test laboratory and assigned a recommended
shipping description, division, and compatibility group in accordance
with Sec. 173.56(b). The HMR also permit Division 1.1 firework devices
that have been approved by the competent authority of a foreign
government that PHMSA's Associate Administrator has acknowledged in
writing as acceptable in accordance with Sec. 173.56(g).
According to Sec. 173.56(j), manufacturers of Division 1.3 and 1.4
fireworks, or their designated U.S. agents, may apply for an explosives
(EX) classification approval without prior examination by a DOT-
approved explosives test laboratory if the firework device is
manufactured in accordance with APA Standard 87-1 (IBR, see Sec.
171.7), and the device passes the thermal stability test. Additionally,
the applicant must certify that the firework device conforms to the APA
Standard 87-1 and that the descriptions and technical information
contained in the application are complete and accurate. PHMSA has in
the past, on a case-by-case basis, in accordance with Sec. 173.56(i),
approved some Division 1.1G fireworks without requiring testing by a
DOT-approved explosives examination laboratory. PHMSA evaluates each EX
approval application independently and has also required Division 1.1G
fireworks to undergo examination testing by a DOT-approved explosive
examination lab prior to issuing the EX approval.
While APA Standard 87-1 contains two instances where Division 1.1
fireworks may be approved under the standard, it does not call for the
level of testing required in the HMR, nor does it provide testing and
criteria to determine when a firework ceases to be a Division 1.1 and
becomes forbidden for transport.
In this document, PHMSA is clarifying its policy that all Division
1.1 fireworks must undergo examination by a DOT-approved explosives
examination laboratory or be approved by a competent authority.
Division 1.1 fireworks will not require UN Test Method 6, as testing
will be limited to UN Test Method 4a(i) and 4b(ii), as is specified in
Sec. 173.57(b). The examination laboratory may request additional
information to make its classification recommendation. Additionally,
PHMSA allows the laboratory to make a classification recommendation for
Division 1.1 fireworks based on analogy.
PHMSA believes that by issuing Division 1.1 fireworks approvals
only after a DOT-approved explosive laboratory has examined and
recommended a classification, or an approval has been issued by a
competent authority of a foreign government acknowledged by PHMSA's
Associate Administrator, it is ensuring that fireworks transported in
commerce meet the established criteria for their assigned
classification, thereby minimizing the potential shipment of
incorrectly classified or forbidden fireworks.
III. List of Commenters, Beyond-the-Scope Comments, and General
Comments
PHMSA received three comments in response to the initial Notice No.
11-6. The comments covered various topics including, but not limited
to, transportation safety, general comments, and economic impacts. One
commenter supported the clarification to the fireworks policy in
initial Notice 11-6, while two commenters had reservations about it. A
summary of the comments received is discussed below. The comments, as
submitted to the docket for the initial Notice No. 11-6 (Docket No.
PHMSA-2011-0157), may be accessed via https://www.regulations.gov and
were submitted by the following:
(1) Veolia ES Technical Solutions, L.L.C.; PHMSA-2011-0157-0002.
(2) American Pyrotechnics Association (APA); PHMSA-2011-0157-0003.
(3) Kellner's Fireworks Inc.; PHMSA-201-0157-0004.
Beyond-the-Scope Comments
One commenter requests PHMSA consider waste management of used or
defective fireworks when proposing any amendments to regulations
related to the transport of fireworks. In this document, PHMSA does not
propose any regulatory amendments; rather, we are clarifying existing
policy. While PHMSA agrees environmental impacts should be considered
when proposing amendments to regulations, no regulatory changes were
proposed in the initial Notice; therefore, waste management of
fireworks is beyond the scope of this document.
Another commenter acknowledges the current prohibition in the HMR
to classify Division 1.1 fireworks under Sec. 173.56(j), but requests
that PHMSA remove the terminology ``Division 1.3 and Division 1.4'' in
Sec. 173.56(j) to allow PHMSA to grant approvals for all fireworks
manufactured in accordance with APA Standard 87-1, regardless of their
classification. This document is a clarification of current
requirements and does not propose any regulatory amendments, rather,
PHMSA is clarifying existing policy; therefore this request will be
handled as a petition for rulemaking and responded to accordingly.
General Comments
Transportation Safety
With regard to transportation safety, PHMSA received one comment in
support of its effort to clarify the classification of Division 1.1
fireworks. Specifically, this commenter noted that
[[Page 9867]]
PHMSA's oversight of the classification of Division 1.1 fireworks is
preferable due to the increased safety hazards involved in the
management of Division 1.1 fireworks.
Another commenter opposes PHMSA's clarification and indicates that
Division 1.1 fireworks approved under APA Standard 87-1 have not
resulted in any incidents that would cause it to reconsider its
practice. Although to date there have been no known incidents involving
the transportation of Division 1.1 fireworks, there are known
occurrences of fireworks being transported that contain chemical
compositions rendering them forbidden from transportation. The APA
Standard 87-1 does not provide the testing and criteria to determine
when a device ceases to be a Division 1.1 firework device and becomes
forbidden from transportation. Testing Division 1.1 fireworks devices
as prescribed in the HMR, enables a determination when a firework
device ceases to be a Division 1.1 device and becomes forbidden.
Furthermore, this clarification will provide oversight to ensure that
Division 1.1 fireworks meet the established criteria for their assigned
classification, thereby minimizing the potential shipment of
incorrectly classified or forbidden fireworks.
Economic Impact
One commenter opposes the policy clarification because they
indicate that fireworks currently classified as Division 1.1G devices
have not changed in many years, even though the regulations governing
their transportation have changed. The commenter states that a
fireworks device that was previously considered to be 1.3G under APA
Standard 87-1 is now considered a 1.1G, but the device is still
manufactured the same way as it was when the device was classed as a
1.3G.
In December 1991, PHMSA (Research and Special Programs
Administration) revised the HMR to align its classification system for
fireworks with the U.N. Recommendations on the Transport of Dangerous
Goods. Under the previous system, fireworks were classified as Class A,
B, or C--Class A fireworks were considered to be the most hazardous and
Class C fireworks were considered to be least hazardous. For the most
part, Class A fireworks were reclassed as Division 1.1, Class B
fireworks were reclassed as Division 1.3, and Class C fireworks were
reclassed as Division 1.4. This resulted in some fireworks with shell
diameters as great as 16 inches being classed as Division 1.3
fireworks. In the 2001-2002 edition of the APA Standard 87-1, fireworks
with diameters greater than 10 inches were all classified as Division
1.1 fireworks. Prior to that edition of the APA Standard 87-1, aerial
shell firework devices not classed as a 1.4G were classed as a 1.3G
regardless of size or quantity of flash composition. This change was
made in the interest of safety.
While PHMSA has approved Division 1.1G fireworks manufactured in
accordance with the APA Standard 87-1, it evaluates each EX approval
independently and has also required Division 1.1G fireworks to be
examined.
Further, the commenter states that the testing for these items can
cost upwards of $8,000 and that the cost will put fireworks companies
intending to sell Division 1.1G fireworks devices at a major loss
before the product is available for sale. To the contrary, third-party
labs have indicated that the cost of performing these tests is
considerably less--depending on a number of variables, PHMSA estimates
that required tests would cost less than $5,400.
Also, as indicated in the initial document, if a fireworks device
is classed and approved as a Division 1.1 firework, the UN Test Method
6 is not required; rather, testing will be limited to UN Test Method
4a(i) and 4b(ii), as is specified in Sec. 173.57(b). Further, PHMSA
allows the laboratory to make a classification recommendation for
Division 1.1 fireworks based on analogy.
This document is intended to clarify current regulations: that only
Division 1.3 and 1.4 fireworks devices may be approved in accordance
with the APA Standard 87-1.
IV. Summary of Policy Clarification
Based on the comments received and PHMSA's responses to those
comments, henceforth, PHMSA will not accept Division 1.1 fireworks
approval applications submitted under the APA Standard 87-1. Division
1.1 fireworks must be examined and assigned a recommended shipping
description, division, and compatibility group by a DOT-approved
explosives test laboratory, or issued an approval for the explosive by
the competent authority of a foreign government acknowledged by PHMSA's
Associate Administrator. On a case-by-case basis under 173.56(i), PHMSA
will evaluate them for approval without testing.
Issued in Washington, DC, on February 14, 2012 under authority
delegated in 49 CFR part 1.
Magdy El-Sibaie,
Associate Administrator for Hazardous Materials Safety, Pipeline and
Hazardous Materials Safety Administration.
[FR Doc. 2012-3894 Filed 2-17-12; 8:45 am]
BILLING CODE 4910-60-P
