Hazardous Materials: Revision to Fireworks Regulations (RRR), 52636-52650 [2012-21360]
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Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules
changes proposed in this Fourth
FNPRM.
16. Private Land Mobile Radio
Licensees (PLMR). PLMR systems serve
an essential role in a range of industrial,
business, land transportation, and
public safety activities. These radios are
used by entities of all sizes operating in
all U.S. business and public sector
categories, and are often used in support
of the licensee’s primary (nontelecommunications) operations. For the
purpose of determining whether a
licensee of a PLMR system is a small
entity as defined by the SBA, we use the
broad census category, Wireless
Telecommunications Carriers (except
Satellite). This definition provides that
a small entity is any such entity
employing no more than 1,500 persons.
The Commission does not require PLMR
licensees to disclose information about
number of employees, so the
Commission does not have information
that could be used to determine how
many PLMR licensees constitute small
entities under this definition. We note
that PLMR licensees generally use the
licensed facilities in support of other
business and governmental activities,
and therefore, it would also be helpful
to assess PLMR licensees under the
standards applied to the particular
industry subsector to which the licensee
belongs.
17. As of May 2012, there were
approximately 220 PLMR licensees
operating in the PLMR band between
806–824/851–869 MHz along the U.S.—
Mexico border. We note that many
government and commercial actors are
eligible to hold a PLMR license, and that
any revised rules in this context could
therefore potentially impact small
entities covering a great variety of
industries.
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D. Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements
18. The Fourth FNPRM does not
propose a rule that will entail additional
reporting, recordkeeping, and/or thirdparty consultation or other compliance
efforts beyond those already approved
for this proceeding. See OMB Control
No. 3060–1080 for Improving Public
Safety Communications in the 800 MHz
Band (exp. September 30, 2014).
E. Steps Taken To Minimize Significant
Economic Impact on Small Entities, and
Significant Alternatives Considered
19. The RFA requires an agency to
describe any significant alternatives that
it has considered in reaching its
proposed approach, which may include
the following four alternatives (among
others): (1) The establishment of
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differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance or reporting requirements
under the rule for small entities; (3) the
use of performance, rather than design,
standards; and (4) an exemption from
coverage of the rule, or any part thereof,
for small entities.
20. The Fourth FNPRM will create no
significant economic impact on small
entities because Sprint Nextel
Corporation will pay all reasonable
costs associated with retuning
incumbent licensees to the postreconfiguration channel plans proposed
by the Bureau. Further, once the
channel plans proposed in the Fourth
FNPRM are implemented, licensees will
no longer be subject to on-going
interference in the band and will
therefore save costs that would
otherwise be associated with resolving
interference. Finally, the Bureau
specifically seeks comment on
alternatives to the proposed channel
plans it proposes and will consider such
alternatives as may be recommended in
comments to the Fourth FNPRM.
F. Federal Rules That May Duplicate,
Overlap, or Conflict With the Proposed
Rules
21. None.
Ordering Clauses
22. Accordingly, it is ordered,
pursuant to sections 4(i) and 332 of the
Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 332, that this
Fourth Further Notice of Proposed
Rulemaking is adopted.
23. It is further ordered that the
Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Fourth Further Notice of Proposed
Rulemaking, including the Initial
Regulatory Flexibility Analysis, to the
Chief Counsel for Advocacy of the Small
Business Administration.
Federal Communications Commission.
David S. Turetsky,
Chief, Public Safety and Homeland Security
Bureau.
[FR Doc. 2012–21450 Filed 8–29–12; 8:45 am]
BILLING CODE 6712–01–P
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
49 CFR Parts 107, 172, and 173
[Docket No. PHMSA–2010–0320 (HM–257)]
RIN 2137–AE70
Hazardous Materials: Revision to
Fireworks Regulations (RRR)
Pipeline and Hazardous
Materials Safety Administration
(PHMSA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
PHMSA is proposing to revise
the Hazardous Materials Regulations
applicable to the approval of Division
1.4G consumer fireworks (UN0336
Fireworks) and establish DOT-approved
fireworks certification agencies that will
provide an alternative to the approval
process for Division 1.4G consumer
fireworks. PHMSA is also proposing to
revise procedural regulations pertaining
to certification agencies. These
proposed actions, if adopted, will clarify
regulations with respect to PHMSA’s
fireworks approval process and provide
regulatory flexibility in seeking
authorization for the transportation of
Division 1.4G consumer fireworks.
DATES: Comments must be received by
October 29, 2012. To the extent
possible, PHMSA will consider latefiled comments as a final rule is
developed.
SUMMARY:
You may submit comments
by identification of the docket number
(PHMSA–2010–0320 (HM–257)) by any
of the following methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
online instructions for submitting
comments.
• Fax: 1–202–493–2251.
• Mail: Docket Operations, U.S.
Department of Transportation, West
Building, Ground Floor, Room W12–
140, Routing Symbol M–30, 1200 New
Jersey Avenue, SE., Washington, DC
20590.
• Hand Delivery: To Docket
Operations, Room W12–140 on the
ground floor of the West Building, 1200
New Jersey Avenue SE., Washington,
DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal
holidays.
Instructions: All submissions must
include the agency name and docket
number for this notice at the beginning
of the comment. All comments received
will be posted without change to the
Federal Docket Management System
ADDRESSES:
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Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules
(FDMS), including any personal
information.
Docket: For access to the dockets to
read background documents or
comments received, go to https://
www.regulations.gov or DOT’s Docket
Operations Office (see ADDRESSES).
FOR FURTHER INFORMATION CONTACT: Rob
Benedict, or Lisa O’Donnell, Standards
and Rulemaking Division, Office
Hazardous Materials Safety, Pipeline
and Hazardous Materials Safety
Administration, U.S. Department of
Transportation, 1200 New Jersey
Avenue SE., Washington, DC 20590, at
(202) 366–8553.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Background
III. Proposed Amendments
IV. Summary Review of Proposed
Amendments
V. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This
Rulemaking
B. Executive Order 12866, 13563, and DOT
Regulatory Policies and Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act, Executive
Order 13272, and DOT Procedures and
Policies
F. Paperwork Reduction Act
G. Regulatory Identifier Number (RIN)
H. Unfunded Mandates Reform Act of 1995
I. Environmental Assessment
J. Privacy Act
K. International Trade Analysis
L. National Technology Transfer and
Advancement Act
VI. List of Subjects
I. Executive Summary
The pyrotechnic industry is a global
logistics supply chain comprised of
mostly foreign fireworks manufacturers
and domestic importers, retailers,
distributors, and consumers. Prior to the
transportation into and throughout the
U.S., all explosives, including Division
1.4 consumer fireworks, must be
classed, approved, and issued a DOT EX
classification approval number (EX
number) by PHMSA. The EX number is
a unique identifier that indicates a
firework device has been classed and
approved for transportation into and
throughout the U.S.
PHMSA is committed to maintaining
the exemplary transportation safety
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record that Division 1.4G consumer
fireworks have displayed over the past
forty years, but seeks to reduce burden
and increase flexibility for the regulated
community by providing an alternative
to PHMSA’s approval process. PHMSA
has conducted an intensive
retrospective review of the fireworks
approval program and has determined
that there is a delay in the processing of
EX approval applications under the
current regulatory scheme. PHMSA
proposes an alternative option for
Division 1.4G consumer fireworks in
which applicants will submit
applications for certification to a
Fireworks Certification Agency (FCA),
in lieu of submitting applications for
approval to PHMSA. To ensure
oversight of the proposed FCAs, this
proposal includes reporting and
recordkeeping requirements.
Additionally, PHMSA is proposing to
define consumer fireworks and clarify
the approval process for designation as
a certification agency.
This NPRM affects the following
entities and proposes the following
requirements:
Affected entities
Proposals
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• Division 1.4G consumer fireworks manufacturers complying with Part • Provide for alternative method to certify Division 1.4G consumer fire173.
works for transportation.
• Division 1.4G consumer fireworks importers complying with Part 173 • Require retention of a record by certifying agencies, manufacturers
• Division 1.4G consumer fireworks transporters complying with Part
and importers indicating a Division 1.4G consumer fireworks classi173.
fication has been certified in a manner consistent with the proposed
• FCAs certifying compliance with the requirements for Division 1.4G
requirements.
consumer fireworks.
• Clarify approval process for designation as a certification agency and
• State and local fire service and law enforcement agencies that utilize
provide for reconsideration of decisions to modify, terminate, or susDivision 1.4G consumer fireworks classifications and approvals under
pend a designation.
the HMR to enforce additional state and local requirements and bans.
• Lighter Testing Agencies.
• Package Testing Laboratories.
To monetize the costs and benefits of
the proposals in this NPRM, PHMSA
used a number of assumptions to
develop a base case. The overall costs
and benefits of the proposals are
dependent on the assumption that all
affected entities are currently complying
with the regulations and that 50 to 90
percent of applicants will choose a
DOT-approved FCA to certify that
Division 1.4G consumer fireworks
complies with the American
Pyrotechnics Association’s (APA)
Standard 87–1 (IBR, see § 171.7), in lieu
of filing an approval application with
PHMSA.1 We believe this alternative
1 PHMSA
based the percentage range (fifty to
ninety percent) used in this rulemaking on the fact
that over eighty percent of firework importers and
manufacturers voluntarily participate in American
Fireworks Standards Laboratory (AFSL) testing
program to comply with the Consumer Product
Safety Commission (CPSC) requirements. A range
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process will be attractive to the
fireworks industry as it will expedite
the transportation process without
compromising the current level of
safety, enable shipments of Division
1.4G consumer fireworks to reach the
market in a more timely manner, and
consequently provide a cost savings.
Cost in this scenario, includes the cost
attributed to shipments that are delayed
while approval applications are pending
with PHMSA.
Costs associated with the proposals
are primarily comprised of fees that
FCAs may assess on manufacturers of
Division 1.4G fireworks. There may also
be costs associated with proposed
was chosen to demonstrate some level of
uncertainty and to provide a tolerance for
fluctuations in use of FCAs.
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recordkeeping requirements.2 Benefits
will be derived from the expedited
processing of consumer fireworks
applications, resulting in faster time to
market for each firework device.
PHMSA estimates that the economic
effects of this rulemaking, once finalized
and adopted, will be sustained
indefinitely. However, because of the
difficulty of and uncertainty associated
with forecasting industry effects into the
far future, we assume a 10-year
timeframe to outline, quantify, and
monetize the costs and benefits of the
2 PHMSA assumed that, absent relevant
information on document retention practices of the
fireworks industry, 50 percent of records will be
stored in paper format and 50 percent of records
will be stored in electronic format. Based on this
assumption PHMSA estimated the record keeping
cost to be approximately $610 per U.S. importer/
manufacturer per year.
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proposals and to demonstrate the net
effects of the proposals.
If the proposals in this NPRM are
adopted, PHMSA estimates total annual
benefits will be between approximately
$14.5 million and $26.5 million, and
total annual costs will be between $4
million and $7 million, resulting in total
annual net benefits of between $11
million and $19 million. The table
below summarizes the calculated cost
and benefits associated with the NPRM.
ANNUAL NET BENEFITS
Low redirected
application rate
(50%)
High redirected
application rate
(90%)
BENEFITS
Expected Annual Private-Sector Benefits of Expedited Verification .......................................................
$14,680,000
$26,430,000
TOTAL ANNUAL BENEFITS ................................................................................................................
14,680,000
26,430,000
Record Retention Costs:
Costs of 2 Additional Years of Paper Record Retention, All U.S. Importers per year ........................
10,200
58,000
Cost for Required Electronic Storage Space, All U.S. Importers and Manufacturers per year ..........
Negligible
Negligible
Total Annual Record Retention Costs ..........................................................................................
FCA Processing Costs:
Costs of application processing conducted by FCAs ** .......................................................................
10,200
58,000
3,937,500
7,087,500
Total Annual FCA Processing Costs ............................................................................................
3,937,500
7,087,500
TOTAL ANNUAL COSTS ......................................................................................................
3,947,700
7,145,500
TOTAL ANNUAL NET BENEFITS ..................................................................................
10,732,300
19,284,500
COSTS
PHMSA estimates the 10-year present
value of the net benefits is about $80
million to $143 million (discounted at a
3 percent rate) or $55 million to $98
million (discounted at a 7 percent rate).
PHMSA concludes that the aggregate
benefits justify the aggregate costs. A
summary of the range of expected
annual costs and benefits is provided in
the table below.3
Annual Benefit ($2012)
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Annual Cost ($2012) ....
Benefit-Cost Ratio ........
Net Benefit ....................
$14.5–26.5 million.
$4–7 million.
3.70–3.71.
$11–19 million.
PHMSA requests specific comments
on the analysis underlying these
estimates, including the percentage of
entities that will choose to have their
1.4G consumer fireworks certified by
FCAs instead of being approved by
PHMSA, the manner in which records
will be kept (i.e., electronic or paper),
the estimated cost of the recordkeeping
requirements, the number of affected
entities (e.g., manufacturers and
importers), and the estimated fee an
FCA would charge for certification. We
are also asking for general comments or
suggestions regarding approaches to
reduce the costs of this rule while
maintaining or increasing the benefits.
Additionally, PHMSA seeks comments
on possible changes that might improve
3 Figures
are rounded.
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the rule and increase regulatory
flexibility.
II. Background
The requirements for the
classification and packaging of Class 1
explosive materials are specified in
Subpart C of Part 173 of the Hazardous
Materials Regulations (HMR; 49 CFR
parts 171—180). Fireworks are
considered a Class 1 explosive material
and must be classified under one of five
hazard divisions and compatibility
groups (1.1G, 1.2G, 1.3G, 1.4G, and
1.4S). As currently specified in Subpart
C of Part 173 of the HMR, prior to
transportation into and within the U.S.,
all explosives, including fireworks,
must be approved and assigned a
classification by PHMSA based on
actual testing. Division 1.3 and 1.4
fireworks may also be approved in
accordance with the American
Pyrotechnics Association (APA)
Standard 87–1.
PHMSA’s Current Fireworks Regulations
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), 173.56(f)
or 173.56(i). Division 1.3 and 1.4
fireworks may either be approved in
accordance with §§ 173.56(b), 173.56(f)
or 173.56(i), or in accordance with
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§ 173.56(j), which provides an option for
obtaining an EX number and approval
without prior testing by a DOTapproved explosives test laboratory.
Section 173.56(j) requires that the
firework device is manufactured in
accordance with APA Standard 87–1
and passes a thermal stability test. An
applicant requesting PHMSA approval
based on § 173.56(j) submits an
application that contains required
information specified in APA Standard
87–1. For example, the standard
requires that the size of the device, as
well as the various formulas and
weights of each type of chemical
composition contained in the device
must be specified in the application.
Only formulas containing chemicals
identified in APA Standard 87–1, Table
of ‘‘Standard Fireworks Chemicals’’ can
be approved under the provisions of
APA Standard 87–1. PHMSA has
expanded on the Table of ‘‘Standard
Fireworks Chemicals’’ to further detail
chemicals that are permitted and
prohibited in consumer fireworks
devices.4 The manufacturer must submit
a signed application with a detailed
diagram of the device and certify that
4 PHMSA’s expanded list of permitted and
prohibited chemicals for consumer fireworks
devices can be found at the following URL: https://
www.phmsa.dot.gov/staticfiles/PHMSA/
DownloadableFiles/Hazmat/Regulations/Approved
%20and%20Prohibited%20Fireworks%20
Chemicals-02-21-2012.pdf.
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the device complies with APA Standard
87–1.
While both §§ 173.56(b) and 173.56(j)
require the applicant to submit an
application to PHMSA’s Approvals and
Permits Division for approval, the HMR
provides a couple of alternatives. Under
§ 173.56(i), if experience or other data
demonstrates that the hazard of a
firework device containing an explosive
chemical composition is greater or less
than indicated according to the
definition and criteria specified in
§§ 173.50, 173.56, and 173.58, the
Associate Administrator may specify a
classification (including determining
that it is forbidden from transportation),
or except the device from the HMR. The
HMR also permits the transport of
firework devices the Associate
Administrator approves on the basis of
an approval issued by the competent
authority of a foreign government, or
when examination of the explosive by a
person approved by the Associate
Administrator is impracticable, on the
basis of reports of tests conducted by
disinterested third parties, as specified
in § 173.56(f).
Regulatory Review of PHMSA’s
Fireworks Program
On May 10, 2012, President Obama
issued Executive Order 13610
(Identifying and Reducing Regulatory
Burdens) reaffirming the goals of
Executive Order 13563 (Improving
Regulation and Regulatory Review)
issued January 18, 2011, and Executive
Order 12866 (Regulatory Planning and
Review) issued September 30, 1993.
Executive Order 13610 directs agencies
to prioritize ‘‘those initiatives that will
produce significant quantifiable
monetary savings or significant
quantifiable reductions in paperwork
burdens while protecting public health,
welfare, safety, and our environment.’’
Executive Order 13610 further instructs
agencies to give consideration to the
cumulative effects of their regulations,
including cumulative burdens, and
prioritize reforms that will significantly
reduce burdens.
Executive Order 13563, which
supplements Executive Order 12866,
directs federal agencies to periodically
review existing significant regulations,
retrospectively analyze rules that may
be outmoded, ineffective, insufficient,
or excessively burdensome, and modify,
streamline, expand, or repeal regulatory
requirements that are no longer
justified. Agencies are also directed to
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public.
In light of these Executive Orders and
the President’s continued efforts to
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streamline government regulations, we
have evaluated our fireworks approval
program to identify areas where we can
improve efficiency, reduce burdens, and
increase regulatory flexibility without
diminishing safety. Specifically, we
analyzed the timeline for reviewing
applications for approval of fireworks
devices. We found that over the past
two years, PHMSA has reviewed
roughly 30,000 applications for
approval of fireworks devices.
Approximately seventy-five percent of
these applications sought approval for
Division 1.4G consumer fireworks
devices.
Due to the high volume of
applications submitted for Division 1.4G
consumer fireworks devices, the
approximate review time per
application is 120 days. Review time
may be extended if applications are
rejected for minor flaws, such as
mathematical errors, or denied for safety
issues. If an application is rejected, the
applicant often resubmits the
application placing it at the end of the
review queue. If an application is
denied, the applicant may file for
reconsideration and subsequently may
appeal to the Administrator; thereby
delaying the final disposition of the
application.
Consequently, the delay in processing
applications can have an economic
impact on the fireworks industry. For
example, the lengthy approval process
interrupts the supply chain and delays
devices from reaching retail stores,
which results in substantial revenue
losses for U.S. importers, distributors
and retail stores, many of whom are
small businesses. Also, manufacturers of
fireworks devices often charge U.S.
purchasers storage fees for devices
purchased that are pending approval
and cannot be transported into and
throughout the U.S.
After significant review of our
fireworks program, we have identified
areas that should be modified to
decrease the delay in processing
approvals. PHMSA is proposing to
revise the HMR to provide an alternative
option that will expedite the process for
obtaining authorization to transport
Division 1.4G consumer fireworks into
and throughout the U.S., without
compromising the current level of
safety. PHMSA believes the revisions
proposed in this NPRM will reduce
burdens and enhance flexibility for the
regulated community, while
maintaining an equivalent level of safety
provided in the HMR.5
5 Over the past forty years, there have been 35
reported transportation incidents in the U.S.
involving fireworks that were declared hazardous
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III. Proposed Amendments
In an effort to reduce regulatory
burden and provide regulatory
flexibility, without diminishing safety,
PHMSA proposes structural changes to
the regulations relating to PHMSA’s
fireworks program. Under the proposed
revision, PHMSA will continue to
approve Division 1.4G consumer
fireworks in accordance with the
current requirements specified in
§§ 173.56(b), 173.56(f), 173.56(i), or
173.56(j). In addition to the current
approval process, PHMSA proposes a
new alternative that will permit
manufacturers to apply to a DOTapproved Fireworks Certification
Agency (FCA) to review and certify that
Division 1.4G consumer fireworks
comply with APA Standard 87–1 and
are safe for transportation in commerce.
To provide oversight of the DOTapproved FCAs, PHMSA is proposing
reporting and recordkeeping
requirements. PHMSA is also proposing
to revise subpart E of part 107 to clarify
the approval process for designation as
a certification agency and provide for
reconsideration of decisions to modify,
terminate, or suspend a designation.
Fireworks Certification Agency (FCA)
The proposed alternative process for
Division 1.4G consumer fireworks will
parallel the current requirements under
§ 173.56(j), except that, rather than
submitting an approval application to
PHMSA, the manufacturer or their U.S.
designated agent will submit a
certification application to a DOTapproved FCA to review and certify that
the firework devices match the chemical
compositions, sizes, and weights
detailed in the application and that they
meet the defining criteria set forth in
APA Standard 87–1 to be classified as
a Division 1.4G consumer firework.
In addition, PHMSA proposes to
require the DOT-approved FCA conduct
a physical examination of a sample of
the Division 1.4G consumer firework
design. This proposal is consistent with
the requirements for other DOTapproved certification agencies. A DOTapproved FCA will be analogous to
lighter certification agencies, which
certify lighter designs, and independent
materials. During this same period, there has never
been a death or major injury attributed to fireworks
while in transportation when there was compliance
with the regulations. While there have been two
incidents that resulted in fatalities in that forty year
period, both involved the improper setup or storage
of display fireworks, and were not attributed to the
transportation of Division 1.4G consumer fireworks.
Detailed hazardous materials incident reports for
hazardous materials incidents specified in § 171.16
may be found at the PHMSA Web site at the
following URL: https://hazmatonline.phmsa.dot.
gov/IncidentReportsSearch/Search.aspx.
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inspection agencies, which evaluate and
certify cylinder manufacturers. These
entities physically examine the product
(i.e., lighters or cylinders) to determine
whether the product meets certain
criteria specified in the HMR to ensure
safe transportation of the product.
Likewise, PHMSA proposes to require
the DOT-approved FCAs physically
examine a sample of the Division 1.4G
consumer firework design type prior to
initial shipment to determine whether
the device meets the requirements of
APA Standard 87–1 and matches the
dimensions, chemical composition, and
device type specified in the application
for certification.
To become a DOT-approved FCA, the
applicant will be required to submit an
application with all procedures it will
use to review and certify Division 1.4G
consumer fireworks, in accordance with
the provisions in subpart E of part 107.
These procedures will be designed by
the applicant; however, PHMSA will
review the applicant’s procedures to
determine whether they are adequate to
certify compliance with APA-Standard
87–1 and whether they provide an
equivalent or greater level of safety to
the current approval process. PHMSA
plans to develop a guidance document
for FCAs addressing standard
procedures for the certification of
Division 1.4G consumer fireworks.
Any domestic or foreign entity may
apply to become a DOT-approved FCA
provided that it is not directly or
indirectly controlled by, or have a
financial involvement with, any entity
that manufactures, transports, or
imports fireworks, except for providing
services as an FCA. To qualify as a DOTapproved FCA, each applicant must: (1)
Meet specific criteria designed to ensure
that the FCA is an impartial,
independent, unbiased, and qualified
entity; (2) submit an application,
including certification procedures; and
(3) successfully complete a facility
inspection performed by PHMSA. To
meet the specific qualification criteria,
the applicant will be required to
demonstrate knowledge of the
applicable regulations, including
subpart C of part 173 of the HMR and
the APA standard 87–1, the ability to
review and evaluate design drawings
and applications in accordance with the
APA standard 87–1, and the ability to
review and evaluate the qualifications of
materials and fabrication procedures. If
approved, PHMSA will issue an
approval and an identifying number
unique to that FCA. This number will
provide traceability and enable PHMSA
to seek corrective action or suspend or
terminate certification authority if the
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requirements of the HMR or the FCA
approval are not met.
Fireworks Identification Scheme
Currently, all Division 1.4G fireworks
devices are approved by PHMSA and
assigned an EX number that represents
that the fireworks article or device is in
compliance with the classification
requirements of the HMR. A current EX
number approval begins with the letters
‘‘EX’’ followed by the year of issuance
(e.g. 2012), the month of issuance, (e.g.
07), and the approval number issued
that month, where ‘‘0001’’ indicates the
first approval of the month. An example
of the entire string of numbers appears
as follows: ‘‘EX2012070001.’’
To differentiate between an approval
issued by PHMSA and a DOT-approved
FCA certification, PHMSA proposes to
use an FX numbering scheme. Instead of
issuing an EX number and approval
through PHMSA for a fireworks device,
which is an inherently governmental
function that cannot be reassigned, the
DOT-approved FCA will issue a unique
identifier (FX number) for devices it
certifies as Division 1.4G consumer
fireworks. The FX number will identify
the DOT-approved FCA, the device, and
the manufacturer. An example of an FX
number would be ‘‘FX123–456.’’ In this
example ‘‘123’’ will correspond to the
DOT-approved FCA conducting the
review and certification. This portion of
the numbering sequence will be issued
to the FCA by PHMSA. The ‘‘456’’ will
represent a unique certification
identifier traceable to both the
manufacturer of the Division 1.4G
consumer firework device and the
device itself. This portion of the
numbering sequence will be issued by
the DOT-approved FCA. Each Division
1.4G consumer firework certified in this
manner will be required to be marked
and labeled in accordance with subpart
D and E of part 172. As with EX
numbers, marking the package with the
FX number will not be required
provided the FX number for each
fireworks device is indicated on an
accompanying shipping paper. The
introduction of the FX numbering
scheme will result in some Division
1.4G consumer fireworks being assigned
an EX number when approved by
PHMSA, and others being assigned an
FX number when certified by a DOTapproved FCA.
Given the long history and wide
recognition of the EX numbering
scheme, PHMSA seeks specific
comments on the supply chain
implications, the economic impact and
safety concerns associated with the
proposed FX numbering system, as well
as comments on how to implement the
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changes if they are adopted. For
example, will the use of different alpha
designators (i.e., EX and FX) pose
complications or confusion within the
transportation system?
PHMSA also seeks comments
regarding alternative methods that may
be used to identify Division 1.4G
consumer fireworks devices that have
been certified by a DOT-approved FCA,
including suggestions in the alphanumeric sequence that will facilitate
transport while providing a clear
distinction between PHMSA approved
devices and devices certified by an FCA
as compliant with APA standard 87–1.
Reporting and Recordkeeping
Requirements
PHMSA is proposing specific
reporting and recordkeeping
requirements to ensure that the DOTapproved FCAs are correctly certifying
Division 1.4G consumer fireworks and
are in compliance with the HMR and
the FCA approval. As a condition of the
FCA approval, each DOT-approved FCA
will be required to submit to PHMSA
electronic reports of the results of all
devices submitted for certification on a
schedule specified in the approval.
Additionally, for each firework device
certified and issued an FX number, the
DOT-approved FCA that reviewed the
application, the manufacturer, and the
importer will be required to maintain
the device’s thermal stability test report
and a copy of the application. Currently,
most consumer fireworks manufactured
or assembled in the U.S. and those
imported into the U.S. are voluntarily
tested to ensure that they comply with
the Consumer Product Safety
Commission (CPSC) requirements. The
testing facility, the manufacturers, and
the importers utilizing this voluntary
process are required to maintain records
of these tests for three years.6 As it is
current industry practice for importers
to maintain similar records under the
CPSC requirements, there will be
limited additional paperwork burden for
importers. The DOT-approved FCA will
also be required to maintain a copy of
the certification procedures used for
each device certified. We propose that
6 Importers and domestic manufacturers
participating in a voluntary program implemented
by American Fireworks Standards Laboratory
(AFSL) may use the test results obtained from AFSL
to support certifications that the tested fireworks
comply with all rules, bans, standards, or
regulations applicable under the Consumer Product
Safety Improvement Act of 2008. AFSL estimates
that over 80% of U.S. importers and manufacturers
currently utilize this voluntary program. All
Participants in this voluntary program must
maintain all records and documents for three (3)
years from date of generation. See https://www.afsl.
org/images/Domestic_Certification_Program_Final_
012511.pdf (last visited June 12, 2012).
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FCAs, manufacturers and importers
maintain these records for a period of
five years; however, PHMSA will
maintain the records for up to 10 years
consistent with current practices for
other approvals. The Associate
Administrator, or designated official,
may inspect the DOT-approved FCA’s
facilities and records to verify
compliance with the recordkeeping
requirements, the HMR, and the FCA
approval.
PHMSA recognizes that under the
proposed system manufacturers or their
U.S. designated agents may attempt to
submit duplicate applications to both a
DOT-approved FCA and to PHMSA
concurrently. As this new process is
designed to promote efficiency while
maintaining safety, the submission of
duplicate applications under both
processes may result in confusion,
slower processing, and diminished
safety. With this in mind, PHMSA
proposes to require a signed
certification statement on all
applications submitted to either PHMSA
or a DOT-approved FCA stating that an
application was not submitted to any
other entity. PHMSA will be able to
verify that duplicative applications are
not being submitted by reviewing the
certification reports the DOT-approved
FCAs will be required to submit to
PHMSA. If a manufacturer or its U.S.
designated agent submits identical
applications to both a DOT-approved
FCA and PHMSA, the manufacturer and
its U.S. designated agent will be in
violation of the HMR and the approval
and may be fined under 18 United
States Code, or imprisoned for not more
than 5 years, or both, except the
maximum amount of imprisonment may
be 10 years in any case in which the
violation involves the release of a
hazardous material which results in
death or bodily injury to any person
(See § 107.333).
PHMSA anticipates that the proposed
alternative certification process will
reduce the processing time that it takes
to evaluate an application. As a result,
economic burdens caused by a delay in
processing approvals will be reduced.
Further, it may also promote innovation
and potentially create new jobs, as
currently no DOT-approved FCAs exist.
Additionally, PHMSA will continue to
require that Division 1.4G consumer
fireworks comply with all other
requirements in the HMR, including the
shipping paper, marking, labeling,
placarding, and incident reporting
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requirements to ensure safety is not
diminished.
Should the proposed alternative
option be adopted in a future
rulemaking, PHMSA plans to develop a
guidance document addressing standard
operating procedures for the
certification of Division 1.4G consumer
fireworks. The publication of this
guidance document will coincide with
the final rule publication.
PHMSA seeks general comments on
the proposed changes to the fireworks
program. PHMSA seeks specific
comments on the need for revision of
the fireworks program, the economic
impact of the proposed changes, safety
concerns associated with the proposed
changes, as well as comments on how
to implement the changes if they are
adopted. PHMSA also seeks comments
on whether the proposed record
retention period of five years is
adequate or if the retention period
should be expanded to address the
longer shelf life of some consumer
fireworks. In addition, PHMSA invites
all stakeholders and affected entities,
including the CPSC, the Bureau of
Alcohol, Tobacco, Firearms and
Explosives, Customs and Border Patrol,
and state and/or local fire and police
departments to comment on the
proposals.
IV. Summary Review of Proposed
Amendments
In an effort to reduce regulatory
burden and provide industry more
flexibility, we are proposing structural
changes to the regulations relating to
PHMSA’s fireworks program.
Specifically, PHMSA proposes to revise
the requirements in five sections
(§§ 107.402, 107.403, 172.320, 173.56
and 173.59), add two new sections
(§§ 173.64 and 173.65), and reserve one
section (§ 107.405). The specific
revisions and additions to these sections
are detailed below by topic.
Fireworks Approval Program
We propose moving the current
requirements of § 173.56(j) to a
standalone new § 173.64 entitled
‘‘Exceptions for Division 1.3 and 1.4
Fireworks.’’ In addition, we propose the
addition of a new § 173.65 entitled
‘‘Exceptions for Division 1.4G Consumer
Fireworks’’ that will detail the
alternative certification process for
Division 1.4G consumer fireworks. To
correspond to the changes proposed in
this NPRM, we will revise the entry
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‘‘UN0336 Fireworks’’ in § 172.101
Hazardous Materials Table. Further, a
definition for ‘‘consumer firework’’ will
be added to § 173.59. No modifications
are proposed for §§ 173.56(f) and
173.56(i).
The hazard communication
requirements for Division 1.4G
consumer fireworks will be specified in
paragraph (c) of the new § 173.65 and
the revised § 172.320. Specifically,
§ 172.320 will be revised to reflect the
addition of FX numbers.
Fireworks Certification Agency (FCA)
The process for applying for an
approval to operate as a DOT-approved
FCA will be found in the proposed
revised § 107.402 entitled ‘‘Application
for designation as a certification
agency.’’ General application
requirements for designation as a
certification agency will be moved to
§ 107.402(b). No new general
application requirements are being
proposed in this NPRM. Application
requirements specific to Packing and
Lighter Certification Agencies will be
moved to § 107.402(c). No new
application requirements specific to
Packing and Lighter Certification
Agencies are being proposed in this
NPRM. Application requirements to
become a DOT-approved FCA will be
found in the proposed § 107.402(d).
To clarify and provide consistency in
the procedural process for designation
as a certification agency, the subpart E
heading will be entitled ‘‘Designation of
Certification Agencies.’’ The words ‘‘as
an approval or’’ will be removed from
§ 107.402. The word ‘‘approval’’ will be
replaced with ‘‘certification’’ in the
§ 107.403 heading.
Reconsideration for a denial of
designation as a fireworks certification
agency will be found in § 107.403(c),
which will be revised to provide that
the procedural requirements of subpart
H of this part apply to the process for
reconsideration of denials of
designations. A new subparagraph (d)
will be added to § 107.403 to provide
that the procedural requirements of
subpart H of this part will also apply to
the process for modification,
suspension, and termination of
designations. Section 107.405 will be
deleted and reserved.
An overview of the proposed process
to be recognized by PHMSA as a DOTapproved FCA is detailed in Figure 1
below.
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Alternative Process for Division 1.4G
Consumer Fireworks
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The procedures for a manufacturer of
Division 1.4G consumer fireworks or its
U.S. designated agent to submit an
application for certification to a DOTapproved FCA will be specified in the
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new § 173.65(a). These requirements
parallel those currently in § 173.56(j);
however, they address certification by a
DOT-approved FCA, as opposed to
PHMSA approval, and describe that
fireworks utilizing this review process
will be issued an FX number, in lieu of
an EX number. The current approval
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process will continue to be available;
however, manufacturers and their U.S.
designated agents may voluntarily use
the FCA process as an alternative.
Diagrams of the current (Figure 2) and
proposed (Figure 3) consumer fireworks
application processes are shown below.
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Reporting and Recordkeeping
Requirements
DOT-approved FCA reporting
requirements on certification activities
will be found in § 107.402(d)(8).
Recordkeeping requirements requiring
the manufacturer, importer, and
fireworks certification agency to
maintain a record or an electronic image
of the record demonstrating compliance
with § 173.65 will be found in
§ 173.65(b).
V. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This
Rulemaking
This notice of proposed rulemaking
(NPRM) is published under the
authority of the Federal Hazardous
Materials Transportation Law, 49 U.S.C.
5101 et seq. Section 5103(b) authorizes
the Secretary to prescribe regulations for
the safe transportation, including
security, of hazardous material in
intrastate, interstate, and foreign
commerce. This NPRM provides an
alternative to the current process for
approving Division 1.4G consumer
fireworks more quickly and efficiently,
without compromising safety.
Furthermore, section 5120(b) authorizes
the Secretary of Transportation to
ensure that, to the extent practicable,
regulations governing the transportation
of hazardous materials in commerce are
consistent with standards adopted by
international authorities.
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B. Executive Order 13610, Executive
Order 13563, Executive Order 12866,
and DOT Regulatory Policies and
Procedures
This NPRM is not considered a
significant regulatory action under
section 3(f) Executive Order 12866 and,
therefore, was not reviewed by the
Office of Management and Budget
(OMB). The proposed rule is not
considered a significant rule under the
Regulatory Policies and Procedures
order issued by the U.S. Department of
Transportation (44 FR 11034).
Executive Order 13563 is
supplemental to and reaffirms the
principles, structures, and definitions
governing regulatory review that were
established in Executive Order 12866
Regulatory Planning and Review of
September 30, 1993. Executive Order
13563, issued January 18, 2011, notes
that our nation’s current regulatory
system must not only protect public
health, welfare, safety, and our
environment but also promote economic
growth, innovation, competitiveness,
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and job creation.7 Further, this
executive order urges government
agencies to consider regulatory
approaches that reduce burdens and
maintain flexibility and freedom of
choice for the public. In addition,
federal agencies are asked to
periodically review existing significant
regulations, retrospectively analyze
rules that may be outmoded, ineffective,
insufficient, or excessively burdensome,
and modify, streamline, expand, or
repeal regulatory requirements in
accordance with what has been learned.
Executive Order 13610, issued May
10, 2012, urges agencies to conduct
retrospective analyses of existing rules
to examine whether they remain
justified and whether they should be
modified or streamlined in light of
changed circumstances, including the
rise of new technologies.8
By building off of each other, these
three Executive Orders require 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.’’
PHMSA has evaluated our fireworks
approval program for effectiveness and
identified areas that could be modified
to enhance the program and increase
flexibility for the regulated community.
In this NPRM, the proposed
amendments to the HMR will not
impose increased compliance costs on
the regulated industry. By proposing to
amend the HMR to allow for an
alternative to the approval process for
Division 1.4G consumer firework
devices, PHMSA will reduce regulatory
burden and increase flexibility to
industry, while maintaining an
equivalent level of safety.
A summary of the regulatory
evaluation used to support the
proposals presented in this NPRM are
discussed below.
Regulatory Evaluation
For the regulatory evaluation of this
NPRM, PHMSA assumes:
• Between 50 and 90 percent of
applicants will choose to file a Division
1.4G consumer fireworks application
with a DOT-approved FCA instead of
filing an application with PHMSA.
• Domestic manufacturers and
importers of Division 1.4G fireworks
that participate in the voluntary CPSC
Domestic Testing Program will choose
certification by a DOT-approved FCA.
7 See https://www.whitehouse.gov/the-press-office/
2011/01/18/improving-regulation-and-regulatoryreview-executive-order.
8 See https://www.gpo.gov/fdsys/pkg/FR-2012-0514/pdf/2012-11798.pdf.
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• The existing DOT-approved
explosive test laboratories will likely
apply for approval as a DOT-approved
FCA.
• A 10-year timeframe to outline,
quantify, and monetize the costs and
benefits of the proposal and to
demonstrate the net effects of the
proposal
PHMSA’s current fireworks approval
process has proven effective in
achieving a high level of transportation
safety. This high level of transportation
safety is demonstrated by the fact that
no transportation incidents resulting in
death or serious injury have been
attributed to the transport of consumer
fireworks in the past 40 years. While
continuing to maintain this high level of
safety, we expect the implementation of
the proposals in this NPRM will result
in the benefits outweighing the costs.
We anticipate the primary costs will
be (1) costs attributed to the proposed
five year recordkeeping requirement;
and (2) potential fees assessed by the
DOT-approved FCAs for certification
services. The recordkeeping costs will
apply to DOT-approved FCAs,
manufactures that choose certification
by a DOT-approved FCA, and importers
of fireworks certified by a DOTapproved FCA. The proposed
recordkeeping requirement is similar to
the requirement that requires
participants in the voluntary CPSC
Domestic Testing Program keep a
certification of compliance with CPSC
standards for three years. This
documentation contains much of the
same information PHMSA proposes to
require. Assuming the domestic
manufacturers and importers of Division
1.4G consumer fireworks that
participate in the voluntary CPSC
Domestic Testing Program will choose
certification by a DOT-approved FCA,
we anticipate the recordkeeping costs
will be minimal. While the proposed
recordkeeping requirement is similar to
CPSC’s recordkeeping requirement,
PHMSA acknowledges that the retention
requirement being two years longer than
CPSC’s requirement may impose some
cost. Also, there may be recordkeeping
costs for those who do not participate in
the voluntary CPSC Domestic Testing
Program.
PHMSA assumes that a DOTapproved FCA will likely assess an
explicit cost for its certification services
and fireworks manufacturers will
individually consider their business’
potential to benefit from expedited
processing against the expected costs of
this certification fee. PHMSA
anticipates the benefits of certification
derived from the expedited processing
of consumer fireworks applications,
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resulting in faster time to market for
each firework device, outweighs the cost
of any fees assessed by the DOTapproved FCA. PHMSA also anticipates
these benefits will be realized without
diminishing the exemplary
transportation safety record that
Division 1.4G consumer fireworks have
demonstrated over the past forty years.
The benefit-cost ratio for this NPRM is
estimated to be between 3.70 and 3.71.
These benefit and cost figures depend
on the assumptions mentioned above.
Total annual benefits derived from
this NPRM are expected to be
approximately between $14.5 and 26.5
million, and total annual costs are
expected to be approximately between
$4 and $7 million with total annual net
benefits of approximately between $11
and $19 million. Based on this net
positive value, we conclude that
adopting the proposed requirements
will result in an increase in overall
societal welfare.
The 10-year present value of the net
benefits is approximately $80 million to
52645
$143 million (discounted at a 3 percent
rate) or $55 million to $98 million
(discounted at a 7 percent rate). We
expect adopting this proposal will make
regulation of hazardous materials more
efficient, provide regulatory relief to
industry, and have no negative effect on
the safe transportation of hazardous
materials in the United States. A
summary of the annual costs and
benefits and calculated annual net
benefits is displayed in the table below.
ANNUAL NET BENEFITS 9
Low redirected
application
rate
(50%)
High redirected
application
rate
(90%)
BENEFITS
Expected Annual Private-Sector Benefits of Expedited Verification ...............................................................
$14,680,000
$26,430,000
TOTAL ANNUAL BENEFITS ....................................................................................................................
14,680,000
26,430,000
Record Retention Costs:
Costs of 2 Additional Years of Paper Record Retention, All U.S. Importers per year ............................
10,200
58,000
Cost for Required Electronic Storage Space, All U.S. Importers and Manufacturers per year ..............
Negligible
Negligible
Total Annual Record Retention Costs ..............................................................................................
FCA Processing Costs:
Costs of application processing conducted by FCAs 10 ...........................................................................
10,200
58,000
3,937,500
7,087,500
Total Annual FCA Processing Costs ................................................................................................
3,937,500
7,087,500
TOTAL ANNUAL COSTS ..........................................................................................................
3,947,700
7,145,500
TOTAL ANNUAL NET BENEFITS ......................................................................................
10,732,300
19,284,500
COSTS
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C. Executive Order 13132
This proposed rule has been analyzed
in accordance with the principles and
criteria contained in Executive Order
13132 (‘‘Federalism’’), and the
President’s memorandum on
‘‘Preemption’’ published in the Federal
Register on May 22, 2009 (74 FR 24693).
This proposed rule will preempt State,
local, and Indian tribe requirements but
does not propose any regulation that has
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. Therefore, the
consultation and funding requirements
of Executive Order 13132 do not apply.
9 Figures
are rounded.
calculated by multiplying the estimated
cost of $700 per application by number of Division
1.4G consumer firework applications redirected to
an FCA (i.e. for 50% redirected 5,625 × $700 and
for 90%.
10 Cost
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The Federal hazardous materials
transportation law, 49 U.S.C. 5101–
5128, contains an express preemption
provision (49 U.S.C. 5125 (b)) that
preempts State, local, and Indian tribe
requirements on the following subjects:
(1) The designation, description, and
classification of hazardous materials;
(2) The packing, repacking, handling,
labeling, marking, and placarding of
hazardous materials;
(3) The preparation, execution, and
use of shipping documents related to
hazardous materials and requirements
related to the number, contents, and
placement of those documents;
(4) The written notification,
recording, and reporting of the
unintentional release in transportation
of hazardous material; and
(5) The design, manufacture,
fabrication, marking, maintenance,
recondition, repair, or testing of a
packaging or container represented,
marked, certified, or sold as qualified
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for use in transporting hazardous
material.
This proposed rule addresses all the
covered subject areas above. If adopted
as final, this rule will preempt any
State, local, or Indian tribe requirements
concerning these subjects unless the
non-Federal requirements are
‘‘substantively the same’’ as the Federal
requirements. Furthermore, this
proposed rule is necessary to update,
clarify, and provide relief from
regulatory requirements.
Federal hazardous materials
transportation law provides at
§ 5125(b)(2) that, if DOT issues a
regulation concerning any of the
covered subjects, DOT must determine
and publish in the Federal Register the
effective date of Federal preemption.
The effective date may not be earlier
than the 90th day following the date of
issuance of the final rule and not later
than two years after the date of issuance.
PHMSA has determined that the
effective date of Federal preemption for
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these requirements will be one year
from the date of publication of a final
rule in the Federal Register.
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D. Executive Order 13175
This NPRM has been analyzed in
accordance with the principles and
criteria contained in Executive Order
13175 (‘‘Consultation and Coordination
with Indian Tribal Governments’’).
Because this NPRM does not
significantly or uniquely affect the
communities of the Indian tribal
governments and does not impose
substantial direct compliance costs, the
funding and consultation requirements
of Executive Order 13175 do not apply.
E. Regulatory Flexibility Act, Executive
Order 13272, and DOT Procedures and
Policies
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires an agency to
review regulations to assess their impact
on small entities unless the agency
determines that a rule is not expected to
have a significant impact on a
substantial number of small entities.
The total number of U.S. importers that
are expected to be impacted by the
proposed rulemaking is estimated to be
between 62 and 206. PHMSA chose to
use a range to reflect an uncertainty in
the number of U.S. importers. This
uncertainty is a result of the high
turnover in the fireworks industry
resulting in large year-to-year
fluctuations in the number of importers.
This range is a result of combining
estimated import data with data
provided by a consumer fireworks trade
association. The figure of 62 was
derived from import data obtained from
a publically available business directory
and PHMSA’s approvals database; while
the figure of 206 was derived from
statistics provided by AFSL, a consumer
fireworks trade association. Specifically,
the figure of 206 is derived from the
AFSL Consumer Fireworks Membership
list that shows 175 members. AFSL
claims to represent 85 percent of all U.S.
consumer fireworks importers in the
U.S., therefore, we calculated a total of
206 (175/.85 = 206). PHMSA believes
the actual number of U.S. importers lies
somewhere between 62 and 206.
PHMSA estimates the number of U.S.
manufacturers to be five, based on the
number of hazmat registrants. This
results in a range from 67 to 211 U.S.
manufacturers and importers. PHMSA
seeks comment specifically on the
accuracy of these numbers.
The proposed rule provides an
additional, voluntary option for
manufacturers to apply to a DOTapproved FCA for certification of
Division 1.4 consumer fireworks, in lieu
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of submitting an application to PHMSA
for approval. The expected costs
associated with this rulemaking relate to
recordkeeping since copies of
documentation will have to be retained
for two additional years over current
practice (for U.S. importers and
fireworks manufacturers who elect to
examine and certify new devices with
an FCA instead of seeking an approval
from PHMSA). Fireworks manufacturers
may pay fees assessed by FCAs for
certification services. PHMSA assumes
that most will see the benefits of FCA
certification as justifying the fees
involved. However, the costs are
voluntary costs.
Benefits of the proposed certification
option will be derived from the
expedited processing of consumer
fireworks applications, resulting in
faster time to market for each firework
device. Benefits may be realized from
the reduction in PHMSA’s approvals
application workload, which allows for
administrative cost savings and more
resources for PHMSA Approvals and
Permits staff. These resources may allow
for additional scrutiny to higher risk
hazardous materials approvals
applications. Total annual benefits are
expected to be between approximately
$14.5 million and $26.5 million, and
total annual costs are expected to be
approximately between $4 and $7
million, resulting in total annual net
benefits of between approximately $11
million and $19 million.
Overall, by proposing increased
regulatory flexibility, this proposed rule
should reduce the compliance burden
on the regulated industry, including
small entities, without compromising
transportation safety. Therefore, we
certify that this proposed rulemaking
will not have a significant or negative
economic impact on a substantial
number of small entities. Further
information on the estimates and
assumptions used to evaluate the
potential impacts to small entities is
available in the Regulatory Impact
Assessment that has been placed in the
public docket for this rulemaking. In
this notice, PHMSA is soliciting
comments on the number of affected
entities and the preliminary conclusion
that the proposals in this NPRM will not
cause a significant economic impact on
a substantial number of small entities.
This notice has been developed in
accordance with Executive Order 13272
(‘‘Proper Consideration of Small Entities
in Agency Rulemaking’’) and DOT’s
procedures and policies to promote
compliance with the Regulatory
Flexibility Act to ensure that potential
impacts of draft rules on small entities
are properly considered.
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F. Paperwork Reduction Act
PHMSA currently has an approved
information collection under OMB
Control Number 2137–0557, entitled
‘‘Approvals for Hazardous Materials,’’
with an expiration date of May 31, 2014.
While this NPRM may result in a slight
increase in the annual burden and cost
to OMB Control Number 2137–0557 for
proposed minor record-keeping
requirements under §§ 173.64 and
173.65, this NPRM should result in a
decrease in the burden on the fireworks
industry by increasing regulatory
flexibility, which will provide
manufacturers of Division 1.4 consumer
fireworks with an alternative that
should be more efficient than the
current approval process.
Under the Paperwork Reduction Act
of 1995, no person is required to
respond to an information collection
unless it has been approved by OMB
and displays a valid OMB control
number. Section 1320.8(d), title 5, Code
of Federal Regulations requires that
PHMSA provide interested members of
the public and affected agencies an
opportunity to comment on information
and recordkeeping requests.
This notice identifies revised
information collection requests that
PHMSA will submit to OMB for
approval based on the requirements in
this proposed rule. PHMSA has
developed burden estimates to reflect
changes in this proposed rule and
estimates that the information collection
and recordkeeping burdens will be
revised as follows:
OMB Control No. 2137–0557:
Increase in Annual Number of
Respondents: 211.
Increase in Annual Responses: 5,175.
Increase in Annual Burden Hours: 430.
Increase in Annual Burden Costs: $14,875.
PHMSA specifically requests
comments on the information collection
and recordkeeping burdens associated
with developing, implementing, and
maintaining these requirements for
approval under this proposed rule.
Requests for a copy of this
information collection should be
directed to Steven Andrews or T. Glenn
Foster, Office of Hazardous Materials
Standards (PHH–12), Pipeline and
Hazardous Materials Safety
Administration, 1200 New Jersey
Avenue SE., Washington, DC 20590–
0001, Telephone (202) 366–8553.
Address written comments to the
Dockets Unit as identified in the
ADDRESSES section of this rulemaking.
We must receive comments regarding
information collection burdens prior to
the close of the comment period
identified in the DATES section of this
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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) 395–6974.
G. Regulation Identifier Number (RIN)
A regulation identifier number (RIN)
is assigned to each regulatory action
listed in the Unified Agenda of Federal
Regulations. The Regulatory Information
Service Center publishes the Unified
Agenda in April and October of each
year. The RIN contained in the heading
of this document can be used to crossreference this action with the Unified
Agenda.
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H. Unfunded Mandates Reform Act of
1995
This proposed rule does not impose
unfunded mandates under the
Unfunded Mandates Reform Act of
1995. It does not result in costs of
$141.3 million or more to either state,
local or tribal governments, in the
aggregate, or to the private sector, and
is the least burdensome alternative that
achieves the objective of the rule.
I. Environmental Assessment
The National Environmental Policy
Act of 1969 (NEPA), as amended (42
U.S.C. 4321–4347), and implementing
regulations by the Council on
Environmental Quality (40 CFR part
1500) require Federal agencies to
consider the consequences of Federal
actions and prepare a detailed statement
on actions that significantly affect the
quality of the human environment.
The purpose of this rulemaking is to
allow for an alternative to the approval
process for Division 1.4G consumer
fireworks. The alternatives considered
in the environmental analysis include:
(1) the proposed action, that is,
permitting an alternative process for
Division 1.4G consumer fireworks to be
certified by a DOT-approved FCA; and
(2) the ‘‘no action’’ alternative, meaning
that the regulatory scheme will stay the
same and the proposed new alternative
will not be implemented. PHMSA
believes that both alternatives present
little or no environmental impact on the
quality of the human environment
because both alternatives deal with the
processing of applications. Furthermore,
the proposed amendments only affect
the authorization process that deems
Division 1.4G consumer fireworks safe
for transport and has no impact on any
other transport requirements (e.g.
packaging, hazard communication, etc.).
The proposed action would provide an
additional application process that
would not impact the exemplary safety
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52647
record that Division 1.4G consumer
fireworks have demonstrated over the
past forty years. Therefore, PHMSA has
initially determined that the
implementation of the proposed rule
will not have any significant impact on
the quality of the human environment.
PHMSA, however, invites comments
about environmental impacts that the
proposed rule might pose.
process mirrors the current approval
process, it will not cause unnecessary
obstacles to foreign trade. Accordingly,
this rulemaking is consistent with
Executive Order 13609 and PHMSA’s
obligations under the Trade Agreement
Act, as amended.
J. Privacy Act
Anyone is able to search the
electronic form of all comments
received into any of our dockets by the
name of the individual submitting the
comment (or signing the comment, if
submitted on behalf of an association,
business, labor union, etc.). You may
review DOT’s complete Privacy Act
Statement in the Federal Register
published on April 11, 2000 (Volume
65, Number 70; Pages 19477–78) or you
may visit https://www.dot.gov.
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) that are developed or
adopted by voluntary consensus
standard bodies.
This proposed rulemaking involves
one technical standard: American
Pyrotechnics Association (APA), APA
Standard 87–1 Standard for
Construction and Approval for
Transportation of Fireworks, Novelties,
and Theatrical Pyrotechnics, December
1, 2001 version. This technical standard
is listed in 49 CFR 171.7.
K. International Trade Analysis
Under E.O. 13609, agencies must
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 will be
adopted in the absence of such
cooperation. International regulatory
cooperation can also reduce, eliminate,
or prevent unnecessary differences in
regulatory requirements.
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. For purposes of these
requirements, Federal agencies may
participate in the establishment of
international standards, 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.
PHMSA participates in the
establishment of international standards
in order to protect the safety of the
American public. We have assessed the
effects of the proposed rule, and find
that because the proposed alternative
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L. National Technology Transfer and
Advancement Act
VI. List of Subjects
49 CFR Part 107
Administrative practice and
procedure, Hazardous materials
transportation, Penalties, Reporting and
recordkeeping requirements.
49 CFR Part 172
Education, Hazardous materials
transportation, Hazardous waste,
Labeling, Markings, Packaging and
containers, Reporting and recordkeeping
requirements.
49 CFR Part 173
Hazardous materials transportation,
Packaging and containers, Radioactive
materials, Reporting and recordkeeping
requirements, Uranium.
In consideration of the foregoing, 49
CFR chapter I is proposed to be
amended as follows:
PART 107—HAZARDOUS MATERIALS
PROGRAM PROCEDURES
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 (28 U.S.C. 2461
note), Pub. L. 104–121 sections 212–213;
Pub. L. 104–134 section 31001; 49 CFR 1.45
and 1.53.
2. In Part 107, revise subpart E to read
as follows:
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Subpart E—Designation of
Certification Agency
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§ 107.402 Application for designation as a
certification agency.
(a) Any person seeking designation as
a certification agency must apply in
writing to the Associate Administrator
for Hazardous Materials Safety (PHH–
32), Department of Transportation, East
Building, 1200 New Jersey Avenue SE.,
Washington, DC 20590–0001.
Alternatively, the application with any
attached supporting documentation in
an appropriate format may be submitted
by facsimile (fax) to: (202) 366–3753 or
(202) 366–3308 or by electronic mail
(email) to: approvals@dot.gov. Each
application must be signed and certified
to be correct by the applicant or, if the
applicant is an organization, by an
authorized officer or official
representative of the organization. Any
false statement or representation, or the
knowing and willful concealment of a
material fact, may subject the applicant
to prosecution under the provisions of
18 U.S.C. 1001, and result in the denial
or termination of a designation.
(b) Each application for designation as
a certification agency must be in English
and include the following information:
(1) Name and address of the
applicant, including place of
incorporation if a corporation. In
addition, if the applicant is not a
resident of the United States, the name
and address of a permanent resident of
the United States designated in
accordance with § 105.40 to serve as
agent for service of process.
(2) A statement that the applicant will
allow the Associate Administrator or a
designated official to inspect its records
and facilities in so far as they relate to
the certification activities and will
cooperate in the conduct of such
inspections.
(3) Any additional information
relevant to the applicant’s
qualifications, if requested by the
Associate Administrator.
(4) Information required by the
provisions in subpart H of this part.
(c) Packaging and Lighter Certification
Agencies. In addition to the
requirements in (b), the application
must include the following information:
(1) A listing, by DOT specification (or
special permit) number, or U.N.
designation, of the types of packagings
for which certification authority is
sought.
(2) A personnel qualifications plan
listing the qualifications that the
applicant will require of each person to
be used in the performance of each
packaging certification function. As a
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minimum, these qualifications must
include:
(i) The ability to review and evaluate
design drawings, design and stress
calculations;
(ii) A knowledge of the applicable
regulations of subchapter C of this
chapter and, when applicable, U.N.
standards; and
(iii) The ability to conduct or monitor
and evaluate test procedures and
results; and
(iv) The ability to review and evaluate
the qualifications of materials and
fabrication procedures.
(3) A statement that the applicant will
perform its functions independent of the
manufacturers and owners of the
packagings concerned.
(4) If the applicant’s principal place of
business is in a country other than the
United States, a copy of the designation
from the Competent Authority of that
country delegating to the applicant an
approval or designated agency authority
for the type of packaging for which a
DOT designation is sought, and a
statement that the Competent Authority
also delegates similar authority to U.S.
Citizens or organizations having
designations under this subpart from
PHMSA.
(d) Fireworks Certification Agency.
Prior to reviewing, and certifying
Division 1.4G consumer fireworks for
compliance with APA Standard 87–1 as
specified in part 173 of this chapter, a
person must apply to, and be approved
by, the Associate Administrator to act as
a firework certification agency. A person
approved as a firework certification
agency is not a PHMSA agent or
representative. In addition to (b), the
application must include the following
information:
(1) Name, address, and country of
each facility where Division 1.4G
consumer fireworks test results and
application materials are reviewed and
certified;
(2) Detailed description of the
applicant’s qualifications and ability to
inspect, review, and certify that the
requirements specified by part 173 of
this chapter have been meet. At a
minimum, these qualifications must
include ability to:
(i) Review and evaluate design
drawings, fabrication procedures, and
applications to certify that they are in
accordance with the APA Standard 87–
1; and
(ii) Evaluate thermal stability test
procedures and results.
(3) Detailed description of the
operating procedures to be used by the
firework certification agency to review,
and certify that a Division 1.4G
consumer fireworks application meets
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the requirements specified by part 173
of this chapter;
(4) Name, address, and principal
business activity of each person having
any direct or indirect ownership interest
in the applicant greater than three
percent and any direct or indirect
ownership interest in each subsidiary or
division of the applicant;
(5) Name and a statement of
qualifications of each individual the
applicant proposes to employ to inspect,
review, and certify test results and
certify that application materials
comply with APA Standard 87–1;
(6) A statement that the applicant will
perform its functions independent of the
manufacturers, transporters, importers,
and owners of the fireworks; and
(7) A signed certification declaring
that the information provided in the
approval application is true and correct
and the application has not been
submitted to any other entity, and the
date on which this certification was
signed.
(8) If approved, the results of
fireworks certification evaluation must
be submitted to PHMSA on a schedule
and in a manner specified in the DOTissued designation approval.
*
*
*
*
*
§ 107.403 Designation of certification
agencies.
*
*
*
*
*
(c) Within 30 days of an initial denial
of an application under paragraph (b) of
this section, the application may file an
amended application. If the application
for designation is denied, the applicant
may file for reconsideration in
accordance with the provisions in
subpart H of this part.
(d) The provisions in subpart H will
apply to the modification, suspension,
and termination of an approval
submitted under this subpart.
*
*
*
*
*
§ 107.405 Termination of certification
agencies.
*
*
*
*
§ 107.405
[Reserved]
*
*
*
*
*
*
PART 172—HAZARDOUS MATERIALS
TABLE, SPECIAL PROVISIONS,
HAZARDOUS MATERIALS
COMMUNICATIONS, EMERGENCY
RESPONSE INFORMATION, TRAINING
REQUIREMENTS, AND SECURITY
PLANS
3. The authority citation for part 172
continues to read as follows:
Authority: 49 U.S.C. 5101–5128, 44701; 49
CFR 1.53.
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4. In § 172.101, the Hazardous
Materials Table is amended by revising
entries under ‘‘[REVISE]’’ in the
§ 172.101 Purpose and use of hazardous
materials table.
appropriate alphabetical sequence to
read as follows:
*
*
*
*
*
§ 172.101—HAZARDOUS MATERIALS TABLE
Hazardous
materials
descriptions and
proper
shipping
names
Hazard
class or
division
Identification
Nos.
PG
(2)
Symbols
(3)
(4)
(5)
UN
0336
II
(1)
(8) Packaging (§ 173.***)
(9) Quantity
limitations
(10) Vessel
stowage
Special
provisions
(§ 172.102)
Exceptions
Nonbulk
Bulk
Passenger
aircraft/rail
Cargo
aircraft
only
Location
Other
(6)
(7)
(8A)
(8B)
(8C)
(9A)
(9B)
(10A)
(10B)
1.4G
108
65
62
*
None
Forbidden
75 kg
06
Label
codes
[REVISE]
*
Fireworks ..
*
*
1.4G
*
*
*
*
*
*
5. In § 172.320, paragraph (b) and
paragraph (d) are revised to read as
follows:
PART 173—SHIPPERS—GENERAL
REQUIREMENTS FOR SHIPMENTS
AND PACKAGINGS
§ 172.320
6. The authority citation for part 173
continues to read as follows:
Explosive hazardous materials.
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*
*
*
*
*
(b) Except for fireworks approved in
accordance with § 173.64 of this
subchapter, a package of Class 1
materials may be marked as follows, in
lieu of the EX number required by
paragraph (a) of this section:
(1) With a national stock number
issued by the Department of Defense or
identifying information, such as a
product code required by regulations for
commercial explosives specified in 27
CFR part 555, if the national stock
number or identifying information can
be specifically associated with the EX
number assigned; or
(2) For Division 1.4G consumer
fireworks, with a FX number issued by
a fireworks certification agency
approved in accordance with 49 CFR
part 107 subpart E and classified in
accordance with § 173.65.
*
*
*
*
*
(d) The requirements of this section
do not apply if the EX number, FX
number, product code or national stock
number of each explosive item
described under a proper shipping
description is shown in association with
the shipping description required by
§ 172.202(a) of this part. Product codes
and national stock numbers must be
traceable to the specific EX number
assigned by the Associate Administrator
or FX number assigned by a DOT
approved fireworks certification agency.
*
*
*
*
*
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Authority: 49 U.S.C. 5101–5128, 44701; 49
CFR 1.45, 1.53.
7. In § 173.56, the introductory text
for paragraph (b) is revised to read as
follows, and paragraph (j) is removed
and reserved.
§ 173.56 New explosives—definitions and
procedures for classification and approval.
*
*
*
*
*
(b) Examination, classification and
approval. Except as provided in
§§ 173.64 and 173.65 of this subpart, no
person may offer a new explosive for
transportation unless that person has
specified to the examining agency the
ranges of composition of ingredients
and compounds, showing the intended
manufacturing tolerances in the
composition of substances or design of
articles which will be allowed in that
material or device, and unless it has
been examined, classed and approved as
follows:
*
*
*
*
*
(j) [Reserved]
*
*
*
*
*
8. In § 173.59, add new definition for
‘‘consumer firework’’ in appropriate
alphabetical sequence to read as
follows:
§ 173.59 Description of terms for
explosives.
*
*
*
*
*
Consumer firework. Any completed
firework device that is packaged in a
form intended for use by the public that
complies with the construction,
performance, chemical composition,
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*
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*
*
*
and labeling requirements codified by
the U.S. Consumer Product Safety
Commission in Title 16, CFR parts 1500
and 1507. A consumer firework does not
include firework devices, kits or
components banned by the U.S.
Consumer Product Safety Commission
in 16 CFR 1500.17 (a)(8).
*
*
*
*
*
9. Add new section § 173.64 to read
as follows:
§ 173.64 Exceptions for Division 1.3 and
1.4 fireworks.
(a) Notwithstanding the requirements
of § 173.56(b), Division 1.3 and 1.4
fireworks (see § 173.65 for Division 1.4G
consumer fireworks) may be classed and
approved by the Associate
Administrator without prior
examination and offered for
transportation if the following
conditions are met:
(1) The fireworks are manufactured in
accordance with the applicable
requirements in APA Standard 87–1
(IBR, see § 171.7 of this subchapter);
(2) The 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 °C (167 °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 Standard 87–1, and is notified
in writing by the Associate
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Administrator that the fireworks have
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 APA Standard 87–1, that
the descriptions and technical
information contained in the
application are complete and accurate,
and that no duplicate application has
been submitted to a DOT-approved
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 § 173.56(b)(1).
*
*
*
*
*
10. Add new section § 173.65 to read
as follows.
mstockstill on DSK4VPTVN1PROD with PROPOSALS
§ 173.65 Exceptions for Division 1.4G
Consumer Fireworks.
(a) Notwithstanding the requirements
of paragraphs §§ 173.56(b), 173.56(f),
173.56(i), and 173.64, Division 1.4G
consumer fireworks may be offered for
transportation provided the following
conditions are met:
(1) The fireworks are manufactured in
accordance with the applicable
requirements in APA Standard 87–1
(IBR, see § 171.7 of this subchapter);
(2) The device must pass a thermal
stability test. The test must be
performed by maintaining the device, or
a representative prototype of the device
at a temperature of 75 °C (167 °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 of the Division
1.4G consumer firework applies in
writing to a DOT-approved fireworks
certification agency, and is notified in
writing by the fireworks certification
agency that the firework has been:
(i) Evaluated, and examined, as
required, for a Division 1.4G consumer
firework;
(ii) Certified that it complies with
APA Standard 87–1, and meets the
requirements of this section; and
(iii) Assigned an FX number followed
by a corresponding certification report
identifier (e.g., FX–XXX–YYY, where
XXX represents the firework
certification agency and YYY represents
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the certification report identifier that is
traceable to the specific manufacturer
and firework device transported).
(4) The manufacturer’s application
must be complete and include relevant
background data, copies of all
applicable drawings, test results, and
any other pertinent information on each
device for which certification is being
requested. The manufacturer must sign
the application and certify that the
device for which certification is
requested conforms to APA Standard
87–1, that the descriptions and
technical information contained in the
application are complete and accurate,
and that no duplicate applications have
been submitted to PHMSA. If the
application is denied, the DOTapproved fireworks certification agency
must notify the manufacturer in writing
of the reasons for the denial. Following
the issuance of a denial from a DOTapproved fireworks certification agency,
a manufacturer may submit the denial
and original application to PHMSA for
reconsideration in accordance with
subpart H.
(b) Recordkeeping requirements.
Following the certification of each
Division 1.4G consumer firework as
permitted by paragraph (a) of this
section, the manufacturer, importer, and
fireworks certification agency must
maintain a record or an electronic image
of the record demonstrating compliance
with this section. This record must be
accessible at or through its principal
place of business and be made available,
upon request, to an authorized official
of a Federal, State, or local government
agency at a reasonable time and
location. A copy of this record must be
retained for five years after the material
is imported. Records complying with
firework requirements of other Federal
or international agencies may be used to
satisfy the recordkeeping requirements
of this paragraph to the extent that such
records address the recordkeeping
components specified in this section.
For Division 1.4G consumer fireworks
certified by a DOT-approved fireworks
certification agency, the record must
include:
(1) The FX number of the entity that
certified that the firework device
complies with APA Standard 87–1,
including a certification report identifier
that is traceable to the manufacturer and
specific firework device transported;
(2) A copy of the approval application
submitted to the DOT-approved
fireworks certification agency; and
(3) A copy of any certification
documentation completed by the
fireworks certification agency in
accordance with the DOT-approved
procedures.
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(c) Hazard Communication.
Following the certification of each
Division 1.4G consumer firework as
permitted by paragraph (a) of this
section, each package containing a
Division 1.4G consumer firework must
be marked and labeled in accordance
with subpart D and E of part 172.
*
*
*
*
*
Issued in Washington, DC, on August 24,
2012, under authority delegated in 49 CFR
part 106.
Magdy El-Sibaie,
Associate Administrator for Hazardous
Materials Safety, Pipeline and Hazardous
Materials Safety Administration.
[FR Doc. 2012–21360 Filed 8–29–12; 8:45 am]
BILLING CODE 4910–60–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R6–ES–2012–0040;
4500030113]
Endangered and Threatened Wildlife
and Plants; 12-Month Finding on a
Petition To List the Platte River
Caddisfly as Endangered or
Threatened
Fish and Wildlife Service,
Interior.
ACTION: Notice of 12-month petition
finding.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), announce a
12-month finding on a petition to list
the Platte River caddisfly (Ironoquia
plattensis) as an endangered or
threatened species and to designate
critical habitat under the Endangered
Species Act of 1973, as amended. After
review of all available scientific and
commercial information, we find that
listing the Platte River caddisfly as an
endangered or threatened species is not
warranted at this time. However, we ask
the public to submit to us any new
information that becomes available
concerning the threats to the Platte
River caddisfly or its habitat at any time.
DATES: The finding announced in this
document was made on August 30,
2012.
ADDRESSES: This finding is available on
the Internet at https://
www.regulations.gov at Docket Number
FWS–R6–ES–2012–0040. Supporting
documentation we used in preparing
this finding is available for public
inspection, by appointment, during
normal business hours at the U.S. Fish
and Wildlife Service, Nebraska Field
SUMMARY:
E:\FR\FM\30AUP1.SGM
30AUP1
]]>Agencies
[Federal Register Volume 77, Number 169 (Thursday, August 30, 2012)]
[Proposed Rules]
[Pages 52636-52650]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-21360]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 107, 172, and 173
[Docket No. PHMSA-2010-0320 (HM-257)]
RIN 2137-AE70
Hazardous Materials: Revision to Fireworks Regulations (RRR)
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: PHMSA is proposing to revise the Hazardous Materials
Regulations applicable to the approval of Division 1.4G consumer
fireworks (UN0336 Fireworks) and establish DOT-approved fireworks
certification agencies that will provide an alternative to the approval
process for Division 1.4G consumer fireworks. PHMSA is also proposing
to revise procedural regulations pertaining to certification agencies.
These proposed actions, if adopted, will clarify regulations with
respect to PHMSA's fireworks approval process and provide regulatory
flexibility in seeking authorization for the transportation of Division
1.4G consumer fireworks.
DATES: Comments must be received by October 29, 2012. To the extent
possible, PHMSA will consider late-filed comments as a final rule is
developed.
ADDRESSES: You may submit comments by identification of the docket
number (PHMSA-2010-0320 (HM-257)) by any of the following methods:
Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the online instructions for submitting
comments.
Fax: 1-202-493-2251.
Mail: Docket Operations, U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, Routing
Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590.
Hand Delivery: To Docket Operations, Room W12-140 on the
ground floor of the West Building, 1200 New Jersey Avenue SE.,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
Instructions: All submissions must include the agency name and
docket number for this notice at the beginning of the comment. All
comments received will be posted without change to the Federal Docket
Management System
[[Page 52637]]
(FDMS), including any personal information.
Docket: For access to the dockets to read background documents or
comments received, go to https://www.regulations.gov or DOT's Docket
Operations Office (see ADDRESSES).
FOR FURTHER INFORMATION CONTACT: Rob Benedict, or Lisa O'Donnell,
Standards and Rulemaking Division, Office Hazardous Materials Safety,
Pipeline and Hazardous Materials Safety Administration, U.S. Department
of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, at
(202) 366-8553.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Background
III. Proposed Amendments
IV. Summary Review of Proposed Amendments
V. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
B. Executive Order 12866, 13563, and DOT Regulatory Policies and
Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
F. Paperwork Reduction Act
G. Regulatory Identifier Number (RIN)
H. Unfunded Mandates Reform Act of 1995
I. Environmental Assessment
J. Privacy Act
K. International Trade Analysis
L. National Technology Transfer and Advancement Act
VI. List of Subjects
I. Executive Summary
The pyrotechnic industry is a global logistics supply chain
comprised of mostly foreign fireworks manufacturers and domestic
importers, retailers, distributors, and consumers. Prior to the
transportation into and throughout the U.S., all explosives, including
Division 1.4 consumer fireworks, must be classed, approved, and issued
a DOT EX classification approval number (EX number) by PHMSA. The EX
number is a unique identifier that indicates a firework device has been
classed and approved for transportation into and throughout the U.S.
PHMSA is committed to maintaining the exemplary transportation
safety record that Division 1.4G consumer fireworks have displayed over
the past forty years, but seeks to reduce burden and increase
flexibility for the regulated community by providing an alternative to
PHMSA's approval process. PHMSA has conducted an intensive
retrospective review of the fireworks approval program and has
determined that there is a delay in the processing of EX approval
applications under the current regulatory scheme. PHMSA proposes an
alternative option for Division 1.4G consumer fireworks in which
applicants will submit applications for certification to a Fireworks
Certification Agency (FCA), in lieu of submitting applications for
approval to PHMSA. To ensure oversight of the proposed FCAs, this
proposal includes reporting and recordkeeping requirements.
Additionally, PHMSA is proposing to define consumer fireworks and
clarify the approval process for designation as a certification agency.
This NPRM affects the following entities and proposes the following
requirements:
------------------------------------------------------------------------
Affected entities Proposals
------------------------------------------------------------------------
Division 1.4G consumer Provide for
fireworks manufacturers complying with alternative method to certify
Part 173. Division 1.4G consumer
Division 1.4G consumer fireworks for transportation.
fireworks importers complying with Require retention of a
Part 173. record by certifying agencies,
Division 1.4G consumer manufacturers and importers
fireworks transporters complying with indicating a Division 1.4G
Part 173. consumer fireworks
FCAs certifying compliance classification has been
with the requirements for Division certified in a manner
1.4G consumer fireworks. consistent with the proposed
State and local fire service requirements.
and law enforcement agencies that Clarify approval
utilize Division 1.4G consumer process for designation as a
fireworks classifications and certification agency and
approvals under the HMR to enforce provide for reconsideration of
additional state and local decisions to modify,
requirements and bans. terminate, or suspend a
Lighter Testing Agencies...... designation.
Package Testing Laboratories..
------------------------------------------------------------------------
To monetize the costs and benefits of the proposals in this NPRM,
PHMSA used a number of assumptions to develop a base case. The overall
costs and benefits of the proposals are dependent on the assumption
that all affected entities are currently complying with the regulations
and that 50 to 90 percent of applicants will choose a DOT-approved FCA
to certify that Division 1.4G consumer fireworks complies with the
American Pyrotechnics Association's (APA) Standard 87-1 (IBR, see Sec.
171.7), in lieu of filing an approval application with PHMSA.\1\ We
believe this alternative process will be attractive to the fireworks
industry as it will expedite the transportation process without
compromising the current level of safety, enable shipments of Division
1.4G consumer fireworks to reach the market in a more timely manner,
and consequently provide a cost savings. Cost in this scenario,
includes the cost attributed to shipments that are delayed while
approval applications are pending with PHMSA.
---------------------------------------------------------------------------
\1\ PHMSA based the percentage range (fifty to ninety percent)
used in this rulemaking on the fact that over eighty percent of
firework importers and manufacturers voluntarily participate in
American Fireworks Standards Laboratory (AFSL) testing program to
comply with the Consumer Product Safety Commission (CPSC)
requirements. A range was chosen to demonstrate some level of
uncertainty and to provide a tolerance for fluctuations in use of
FCAs.
---------------------------------------------------------------------------
Costs associated with the proposals are primarily comprised of fees
that FCAs may assess on manufacturers of Division 1.4G fireworks. There
may also be costs associated with proposed recordkeeping
requirements.\2\ Benefits will be derived from the expedited processing
of consumer fireworks applications, resulting in faster time to market
for each firework device. PHMSA estimates that the economic effects of
this rulemaking, once finalized and adopted, will be sustained
indefinitely. However, because of the difficulty of and uncertainty
associated with forecasting industry effects into the far future, we
assume a 10-year timeframe to outline, quantify, and monetize the costs
and benefits of the
[[Page 52638]]
proposals and to demonstrate the net effects of the proposals.
---------------------------------------------------------------------------
\2\ PHMSA assumed that, absent relevant information on document
retention practices of the fireworks industry, 50 percent of records
will be stored in paper format and 50 percent of records will be
stored in electronic format. Based on this assumption PHMSA
estimated the record keeping cost to be approximately $610 per U.S.
importer/manufacturer per year.
---------------------------------------------------------------------------
If the proposals in this NPRM are adopted, PHMSA estimates total
annual benefits will be between approximately $14.5 million and $26.5
million, and total annual costs will be between $4 million and $7
million, resulting in total annual net benefits of between $11 million
and $19 million. The table below summarizes the calculated cost and
benefits associated with the NPRM.
Annual Net Benefits
------------------------------------------------------------------------
Low redirected High redirected
application rate application rate
(50%) (90%)
------------------------------------------------------------------------
BENEFITS
------------------------------------------------------------------------
Expected Annual Private-Sector $14,680,000 $26,430,000
Benefits of Expedited
Verification...................
-------------------------------------
TOTAL ANNUAL BENEFITS......... 14,680,000 26,430,000
------------------------------------------------------------------------
COSTS
------------------------------------------------------------------------
Record Retention Costs:
Costs of 2 Additional Years of 10,200 58,000
Paper Record Retention, All
U.S. Importers per year......
-------------------------------------
Cost for Required Electronic Negligible Negligible
Storage Space, All U.S.
Importers and Manufacturers
per year.....................
-------------------------------------
Total Annual Record 10,200 58,000
Retention Costs..........
FCA Processing Costs:
Costs of application 3,937,500 7,087,500
processing conducted by FCAs
**...........................
-------------------------------------
Total Annual FCA 3,937,500 7,087,500
Processing Costs.........
-------------------------------------
TOTAL ANNUAL COSTS.... 3,947,700 7,145,500
-------------------------------------
TOTAL ANNUAL NET 10,732,300 19,284,500
BENEFITS.........
------------------------------------------------------------------------
PHMSA estimates the 10-year present value of the net benefits is
about $80 million to $143 million (discounted at a 3 percent rate) or
$55 million to $98 million (discounted at a 7 percent rate). PHMSA
concludes that the aggregate benefits justify the aggregate costs. A
summary of the range of expected annual costs and benefits is provided
in the table below.\3\
---------------------------------------------------------------------------
\3\ Figures are rounded.
Annual Benefit ($2012)................ $14.5-26.5 million.
Annual Cost ($2012)................... $4-7 million.
Benefit-Cost Ratio.................... 3.70-3.71.
Net Benefit........................... $11-19 million.
PHMSA requests specific comments on the analysis underlying these
estimates, including the percentage of entities that will choose to
have their 1.4G consumer fireworks certified by FCAs instead of being
approved by PHMSA, the manner in which records will be kept (i.e.,
electronic or paper), the estimated cost of the recordkeeping
requirements, the number of affected entities (e.g., manufacturers and
importers), and the estimated fee an FCA would charge for
certification. We are also asking for general comments or suggestions
regarding approaches to reduce the costs of this rule while maintaining
or increasing the benefits. Additionally, PHMSA seeks comments on
possible changes that might improve the rule and increase regulatory
flexibility.
II. Background
The requirements for the classification and packaging of Class 1
explosive materials are specified in Subpart C of Part 173 of the
Hazardous Materials Regulations (HMR; 49 CFR parts 171--180). Fireworks
are considered a Class 1 explosive material and must be classified
under one of five hazard divisions and compatibility groups (1.1G,
1.2G, 1.3G, 1.4G, and 1.4S). As currently specified in Subpart C of
Part 173 of the HMR, prior to transportation into and within the U.S.,
all explosives, including fireworks, must be approved and assigned a
classification by PHMSA based on actual testing. Division 1.3 and 1.4
fireworks may also be approved in accordance with the American
Pyrotechnics Association (APA) Standard 87-1.
PHMSA's Current Fireworks Regulations
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. Sec. 173.56(b), 173.56(f) or 173.56(i). Division 1.3 and 1.4
fireworks may either be approved in accordance with Sec. Sec.
173.56(b), 173.56(f) or 173.56(i), or in accordance with Sec.
173.56(j), which provides an option for obtaining an EX number and
approval without prior testing by a DOT-approved explosives test
laboratory.
Section 173.56(j) requires that the firework device is manufactured
in accordance with APA Standard 87-1 and passes a thermal stability
test. An applicant requesting PHMSA approval based on Sec. 173.56(j)
submits an application that contains required information specified in
APA Standard 87-1. For example, the standard requires that the size of
the device, as well as the various formulas and weights of each type of
chemical composition contained in the device must be specified in the
application. Only formulas containing chemicals identified in APA
Standard 87-1, Table of ``Standard Fireworks Chemicals'' can be
approved under the provisions of APA Standard 87-1. PHMSA has expanded
on the Table of ``Standard Fireworks Chemicals'' to further detail
chemicals that are permitted and prohibited in consumer fireworks
devices.\4\ The manufacturer must submit a signed application with a
detailed diagram of the device and certify that
[[Page 52639]]
the device complies with APA Standard 87-1.
---------------------------------------------------------------------------
\4\ PHMSA's expanded list of permitted and prohibited chemicals
for consumer fireworks devices can be found at the following URL:
https://www.phmsa.dot.gov/staticfiles/PHMSA/DownloadableFiles/Hazmat/Regulations/Approved%20and%20Prohibited%20Fireworks%20Chemicals-02-21-2012.pdf.
---------------------------------------------------------------------------
While both Sec. Sec. 173.56(b) and 173.56(j) require the applicant
to submit an application to PHMSA's Approvals and Permits Division for
approval, the HMR provides a couple of alternatives. Under Sec.
173.56(i), if experience or other data demonstrates that the hazard of
a firework device containing an explosive chemical composition is
greater or less than indicated according to the definition and criteria
specified in Sec. Sec. 173.50, 173.56, and 173.58, the Associate
Administrator may specify a classification (including determining that
it is forbidden from transportation), or except the device from the
HMR. The HMR also permits the transport of firework devices the
Associate Administrator approves on the basis of an approval issued by
the competent authority of a foreign government, or when examination of
the explosive by a person approved by the Associate Administrator is
impracticable, on the basis of reports of tests conducted by
disinterested third parties, as specified in Sec. 173.56(f).
Regulatory Review of PHMSA's Fireworks Program
On May 10, 2012, President Obama issued Executive Order 13610
(Identifying and Reducing Regulatory Burdens) reaffirming the goals of
Executive Order 13563 (Improving Regulation and Regulatory Review)
issued January 18, 2011, and Executive Order 12866 (Regulatory Planning
and Review) issued September 30, 1993. Executive Order 13610 directs
agencies to prioritize ``those initiatives that will produce
significant quantifiable monetary savings or significant quantifiable
reductions in paperwork burdens while protecting public health,
welfare, safety, and our environment.'' Executive Order 13610 further
instructs agencies to give consideration to the cumulative effects of
their regulations, including cumulative burdens, and prioritize reforms
that will significantly reduce burdens.
Executive Order 13563, which supplements Executive Order 12866,
directs federal agencies to periodically review existing significant
regulations, retrospectively analyze rules that may be outmoded,
ineffective, insufficient, or excessively burdensome, and modify,
streamline, expand, or repeal regulatory requirements that are no
longer justified. Agencies are also directed to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public.
In light of these Executive Orders and the President's continued
efforts to streamline government regulations, we have evaluated our
fireworks approval program to identify areas where we can improve
efficiency, reduce burdens, and increase regulatory flexibility without
diminishing safety. Specifically, we analyzed the timeline for
reviewing applications for approval of fireworks devices. We found that
over the past two years, PHMSA has reviewed roughly 30,000 applications
for approval of fireworks devices. Approximately seventy-five percent
of these applications sought approval for Division 1.4G consumer
fireworks devices.
Due to the high volume of applications submitted for Division 1.4G
consumer fireworks devices, the approximate review time per application
is 120 days. Review time may be extended if applications are rejected
for minor flaws, such as mathematical errors, or denied for safety
issues. If an application is rejected, the applicant often resubmits
the application placing it at the end of the review queue. If an
application is denied, the applicant may file for reconsideration and
subsequently may appeal to the Administrator; thereby delaying the
final disposition of the application.
Consequently, the delay in processing applications can have an
economic impact on the fireworks industry. For example, the lengthy
approval process interrupts the supply chain and delays devices from
reaching retail stores, which results in substantial revenue losses for
U.S. importers, distributors and retail stores, many of whom are small
businesses. Also, manufacturers of fireworks devices often charge U.S.
purchasers storage fees for devices purchased that are pending approval
and cannot be transported into and throughout the U.S.
After significant review of our fireworks program, we have
identified areas that should be modified to decrease the delay in
processing approvals. PHMSA is proposing to revise the HMR to provide
an alternative option that will expedite the process for obtaining
authorization to transport Division 1.4G consumer fireworks into and
throughout the U.S., without compromising the current level of safety.
PHMSA believes the revisions proposed in this NPRM will reduce burdens
and enhance flexibility for the regulated community, while maintaining
an equivalent level of safety provided in the HMR.\5\
---------------------------------------------------------------------------
\5\ Over the past forty years, there have been 35 reported
transportation incidents in the U.S. involving fireworks that were
declared hazardous materials. During this same period, there has
never been a death or major injury attributed to fireworks while in
transportation when there was compliance with the regulations. While
there have been two incidents that resulted in fatalities in that
forty year period, both involved the improper setup or storage of
display fireworks, and were not attributed to the transportation of
Division 1.4G consumer fireworks. Detailed hazardous materials
incident reports for hazardous materials incidents specified in
Sec. 171.16 may be found at the PHMSA Web site at the following
URL: https://hazmatonline.phmsa.dot.gov/IncidentReportsSearch/Search.aspx.
---------------------------------------------------------------------------
III. Proposed Amendments
In an effort to reduce regulatory burden and provide regulatory
flexibility, without diminishing safety, PHMSA proposes structural
changes to the regulations relating to PHMSA's fireworks program. Under
the proposed revision, PHMSA will continue to approve Division 1.4G
consumer fireworks in accordance with the current requirements
specified in Sec. Sec. 173.56(b), 173.56(f), 173.56(i), or 173.56(j).
In addition to the current approval process, PHMSA proposes a new
alternative that will permit manufacturers to apply to a DOT-approved
Fireworks Certification Agency (FCA) to review and certify that
Division 1.4G consumer fireworks comply with APA Standard 87-1 and are
safe for transportation in commerce. To provide oversight of the DOT-
approved FCAs, PHMSA is proposing reporting and recordkeeping
requirements. PHMSA is also proposing to revise subpart E of part 107
to clarify the approval process for designation as a certification
agency and provide for reconsideration of decisions to modify,
terminate, or suspend a designation.
Fireworks Certification Agency (FCA)
The proposed alternative process for Division 1.4G consumer
fireworks will parallel the current requirements under Sec. 173.56(j),
except that, rather than submitting an approval application to PHMSA,
the manufacturer or their U.S. designated agent will submit a
certification application to a DOT-approved FCA to review and certify
that the firework devices match the chemical compositions, sizes, and
weights detailed in the application and that they meet the defining
criteria set forth in APA Standard 87-1 to be classified as a Division
1.4G consumer firework.
In addition, PHMSA proposes to require the DOT-approved FCA conduct
a physical examination of a sample of the Division 1.4G consumer
firework design. This proposal is consistent with the requirements for
other DOT-approved certification agencies. A DOT-approved FCA will be
analogous to lighter certification agencies, which certify lighter
designs, and independent
[[Page 52640]]
inspection agencies, which evaluate and certify cylinder manufacturers.
These entities physically examine the product (i.e., lighters or
cylinders) to determine whether the product meets certain criteria
specified in the HMR to ensure safe transportation of the product.
Likewise, PHMSA proposes to require the DOT-approved FCAs physically
examine a sample of the Division 1.4G consumer firework design type
prior to initial shipment to determine whether the device meets the
requirements of APA Standard 87-1 and matches the dimensions, chemical
composition, and device type specified in the application for
certification.
To become a DOT-approved FCA, the applicant will be required to
submit an application with all procedures it will use to review and
certify Division 1.4G consumer fireworks, in accordance with the
provisions in subpart E of part 107. These procedures will be designed
by the applicant; however, PHMSA will review the applicant's procedures
to determine whether they are adequate to certify compliance with APA-
Standard 87-1 and whether they provide an equivalent or greater level
of safety to the current approval process. PHMSA plans to develop a
guidance document for FCAs addressing standard procedures for the
certification of Division 1.4G consumer fireworks.
Any domestic or foreign entity may apply to become a DOT-approved
FCA provided that it is not directly or indirectly controlled by, or
have a financial involvement with, any entity that manufactures,
transports, or imports fireworks, except for providing services as an
FCA. To qualify as a DOT-approved FCA, each applicant must: (1) Meet
specific criteria designed to ensure that the FCA is an impartial,
independent, unbiased, and qualified entity; (2) submit an application,
including certification procedures; and (3) successfully complete a
facility inspection performed by PHMSA. To meet the specific
qualification criteria, the applicant will be required to demonstrate
knowledge of the applicable regulations, including subpart C of part
173 of the HMR and the APA standard 87-1, the ability to review and
evaluate design drawings and applications in accordance with the APA
standard 87-1, and the ability to review and evaluate the
qualifications of materials and fabrication procedures. If approved,
PHMSA will issue an approval and an identifying number unique to that
FCA. This number will provide traceability and enable PHMSA to seek
corrective action or suspend or terminate certification authority if
the requirements of the HMR or the FCA approval are not met.
Fireworks Identification Scheme
Currently, all Division 1.4G fireworks devices are approved by
PHMSA and assigned an EX number that represents that the fireworks
article or device is in compliance with the classification requirements
of the HMR. A current EX number approval begins with the letters ``EX''
followed by the year of issuance (e.g. 2012), the month of issuance,
(e.g. 07), and the approval number issued that month, where ``0001''
indicates the first approval of the month. An example of the entire
string of numbers appears as follows: ``EX2012070001.''
To differentiate between an approval issued by PHMSA and a DOT-
approved FCA certification, PHMSA proposes to use an FX numbering
scheme. Instead of issuing an EX number and approval through PHMSA for
a fireworks device, which is an inherently governmental function that
cannot be reassigned, the DOT-approved FCA will issue a unique
identifier (FX number) for devices it certifies as Division 1.4G
consumer fireworks. The FX number will identify the DOT-approved FCA,
the device, and the manufacturer. An example of an FX number would be
``FX123-456.'' In this example ``123'' will correspond to the DOT-
approved FCA conducting the review and certification. This portion of
the numbering sequence will be issued to the FCA by PHMSA. The ``456''
will represent a unique certification identifier traceable to both the
manufacturer of the Division 1.4G consumer firework device and the
device itself. This portion of the numbering sequence will be issued by
the DOT-approved FCA. Each Division 1.4G consumer firework certified in
this manner will be required to be marked and labeled in accordance
with subpart D and E of part 172. As with EX numbers, marking the
package with the FX number will not be required provided the FX number
for each fireworks device is indicated on an accompanying shipping
paper. The introduction of the FX numbering scheme will result in some
Division 1.4G consumer fireworks being assigned an EX number when
approved by PHMSA, and others being assigned an FX number when
certified by a DOT-approved FCA.
Given the long history and wide recognition of the EX numbering
scheme, PHMSA seeks specific comments on the supply chain implications,
the economic impact and safety concerns associated with the proposed FX
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 and FX) pose complications or confusion within
the transportation system?
PHMSA also seeks comments regarding alternative methods that may be
used to identify Division 1.4G consumer fireworks devices that have
been certified by a DOT-approved FCA, including suggestions in the
alpha-numeric sequence that will facilitate transport while providing a
clear distinction between PHMSA approved devices and devices certified
by an FCA as compliant with APA standard 87-1.
Reporting and Recordkeeping Requirements
PHMSA is proposing specific reporting and recordkeeping
requirements to ensure that the DOT-approved FCAs are correctly
certifying Division 1.4G consumer fireworks and are in compliance with
the HMR and the FCA approval. As a condition of the FCA approval, each
DOT-approved FCA will be required to submit to PHMSA electronic reports
of the results of all devices submitted for certification on a schedule
specified in the approval.
Additionally, for each firework device certified and issued an FX
number, the DOT-approved FCA that reviewed the application, the
manufacturer, and the importer will be required to maintain the
device's thermal stability test report and a copy of the application.
Currently, most consumer fireworks manufactured or assembled in the
U.S. and those imported into the U.S. are voluntarily tested to ensure
that they comply with the Consumer Product Safety Commission (CPSC)
requirements. The testing facility, the manufacturers, and the
importers utilizing this voluntary process are required to maintain
records of these tests for three years.\6\ As it is current industry
practice for importers to maintain similar records under the CPSC
requirements, there will be limited additional paperwork burden for
importers. The DOT-approved FCA will also be required to maintain a
copy of the certification procedures used for each device certified. We
propose that
[[Page 52641]]
FCAs, manufacturers and importers maintain these records for a period
of five years; however, PHMSA will maintain the records for up to 10
years consistent with current practices for other approvals. The
Associate Administrator, or designated official, may inspect the DOT-
approved FCA's facilities and records to verify compliance with the
recordkeeping requirements, the HMR, and the FCA approval.
---------------------------------------------------------------------------
\6\ Importers and domestic manufacturers participating in a
voluntary program implemented by American Fireworks Standards
Laboratory (AFSL) may use the test results obtained from AFSL to
support certifications that the tested fireworks comply with all
rules, bans, standards, or regulations applicable under the Consumer
Product Safety Improvement Act of 2008. AFSL estimates that over 80%
of U.S. importers and manufacturers currently utilize this voluntary
program. All Participants in this voluntary program must maintain
all records and documents for three (3) years from date of
generation. See https://www.afsl.org/images/Domestic_Certification_Program_Final_012511.pdf (last visited June 12, 2012).
---------------------------------------------------------------------------
PHMSA recognizes that under the proposed system manufacturers or
their U.S. designated agents may attempt to submit duplicate
applications to both a DOT-approved FCA and to PHMSA concurrently. As
this new process is designed to promote efficiency while maintaining
safety, the submission of duplicate applications under both processes
may result in confusion, slower processing, and diminished safety. With
this in mind, PHMSA proposes to require a signed certification
statement on all applications submitted to either PHMSA or a DOT-
approved FCA stating that an application was not submitted to any other
entity. PHMSA will be able to verify that duplicative applications are
not being submitted by reviewing the certification reports the DOT-
approved FCAs will be required to submit to PHMSA. If a manufacturer or
its U.S. designated agent submits identical applications to both a DOT-
approved FCA and PHMSA, the manufacturer and its U.S. designated agent
will be in violation of the HMR and the approval and may be fined under
18 United States Code, or imprisoned for not more than 5 years, or
both, except the maximum amount of imprisonment may be 10 years in any
case in which the violation involves the release of a hazardous
material which results in death or bodily injury to any person (See
Sec. 107.333).
PHMSA anticipates that the proposed alternative certification
process will reduce the processing time that it takes to evaluate an
application. As a result, economic burdens caused by a delay in
processing approvals will be reduced. Further, it may also promote
innovation and potentially create new jobs, as currently no DOT-
approved FCAs exist. Additionally, PHMSA will continue to require that
Division 1.4G consumer fireworks comply with all other requirements in
the HMR, including the shipping paper, marking, labeling, placarding,
and incident reporting requirements to ensure safety is not diminished.
Should the proposed alternative option be adopted in a future
rulemaking, PHMSA plans to develop a guidance document addressing
standard operating procedures for the certification of Division 1.4G
consumer fireworks. The publication of this guidance document will
coincide with the final rule publication.
PHMSA seeks general comments on the proposed changes to the
fireworks program. PHMSA seeks specific comments on the need for
revision of the fireworks program, the economic impact of the proposed
changes, safety concerns associated with the proposed changes, as well
as comments on how to implement the changes if they are adopted. PHMSA
also seeks comments on whether the proposed record retention period of
five years is adequate or if the retention period should be expanded to
address the longer shelf life of some consumer fireworks. In addition,
PHMSA invites all stakeholders and affected entities, including the
CPSC, the Bureau of Alcohol, Tobacco, Firearms and Explosives, Customs
and Border Patrol, and state and/or local fire and police departments
to comment on the proposals.
IV. Summary Review of Proposed Amendments
In an effort to reduce regulatory burden and provide industry more
flexibility, we are proposing structural changes to the regulations
relating to PHMSA's fireworks program. Specifically, PHMSA proposes to
revise the requirements in five sections (Sec. Sec. 107.402, 107.403,
172.320, 173.56 and 173.59), add two new sections (Sec. Sec. 173.64
and 173.65), and reserve one section (Sec. 107.405). The specific
revisions and additions to these sections are detailed below by topic.
Fireworks Approval Program
We propose moving the current requirements of Sec. 173.56(j) to a
standalone new Sec. 173.64 entitled ``Exceptions for Division 1.3 and
1.4 Fireworks.'' In addition, we propose the addition of a new Sec.
173.65 entitled ``Exceptions for Division 1.4G Consumer Fireworks''
that will detail the alternative certification process for Division
1.4G consumer fireworks. To correspond to the changes proposed in this
NPRM, we will revise the entry ``UN0336 Fireworks'' in Sec. 172.101
Hazardous Materials Table. Further, a definition for ``consumer
firework'' will be added to Sec. 173.59. No modifications are proposed
for Sec. Sec. 173.56(f) and 173.56(i).
The hazard communication requirements for Division 1.4G consumer
fireworks will be specified in paragraph (c) of the new Sec. 173.65
and the revised Sec. 172.320. Specifically, Sec. 172.320 will be
revised to reflect the addition of FX numbers.
Fireworks Certification Agency (FCA)
The process for applying for an approval to operate as a DOT-
approved FCA will be found in the proposed revised Sec. 107.402
entitled ``Application for designation as a certification agency.''
General application requirements for designation as a certification
agency will be moved to Sec. 107.402(b). No new general application
requirements are being proposed in this NPRM. Application requirements
specific to Packing and Lighter Certification Agencies will be moved to
Sec. 107.402(c). No new application requirements specific to Packing
and Lighter Certification Agencies are being proposed in this NPRM.
Application requirements to become a DOT-approved FCA will be found in
the proposed Sec. 107.402(d).
To clarify and provide consistency in the procedural process for
designation as a certification agency, the subpart E heading will be
entitled ``Designation of Certification Agencies.'' The words ``as an
approval or'' will be removed from Sec. 107.402. The word ``approval''
will be replaced with ``certification'' in the Sec. 107.403 heading.
Reconsideration for a denial of designation as a fireworks
certification agency will be found in Sec. 107.403(c), which will be
revised to provide that the procedural requirements of subpart H of
this part apply to the process for reconsideration of denials of
designations. A new subparagraph (d) will be added to Sec. 107.403 to
provide that the procedural requirements of subpart H of this part will
also apply to the process for modification, suspension, and termination
of designations. Section 107.405 will be deleted and reserved.
An overview of the proposed process to be recognized by PHMSA as a
DOT-approved FCA is detailed in Figure 1 below.
[[Page 52642]]
[GRAPHIC] [TIFF OMITTED] TP30AU12.059
Alternative Process for Division 1.4G Consumer Fireworks
The procedures for a manufacturer of Division 1.4G consumer
fireworks or its U.S. designated agent to submit an application for
certification to a DOT-approved FCA will be specified in the new Sec.
173.65(a). These requirements parallel those currently in Sec.
173.56(j); however, they address certification by a DOT-approved FCA,
as opposed to PHMSA approval, and describe that fireworks utilizing
this review process will be issued an FX number, in lieu of an EX
number. The current approval process will continue to be available;
however, manufacturers and their U.S. designated agents may voluntarily
use the FCA process as an alternative.
Diagrams of the current (Figure 2) and proposed (Figure 3) consumer
fireworks application processes are shown below.
[[Page 52643]]
[GRAPHIC] [TIFF OMITTED] TP30AU12.060
[GRAPHIC] [TIFF OMITTED] TP30AU12.061
[[Page 52644]]
Reporting and Recordkeeping Requirements
DOT-approved FCA reporting requirements on certification activities
will be found in Sec. 107.402(d)(8). Recordkeeping requirements
requiring the manufacturer, importer, and fireworks certification
agency to maintain a record or an electronic image of the record
demonstrating compliance with Sec. 173.65 will be found in Sec.
173.65(b).
V. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
This notice of proposed rulemaking (NPRM) is published under the
authority of the Federal Hazardous Materials Transportation Law, 49
U.S.C. 5101 et seq. Section 5103(b) authorizes the Secretary to
prescribe regulations for the safe transportation, including security,
of hazardous material in intrastate, interstate, and foreign commerce.
This NPRM provides an alternative to the current process for approving
Division 1.4G consumer fireworks more quickly and efficiently, without
compromising safety. Furthermore, section 5120(b) authorizes the
Secretary of Transportation to ensure that, to the extent practicable,
regulations governing the transportation of hazardous materials in
commerce are consistent with standards adopted by international
authorities.
B. Executive Order 13610, Executive Order 13563, Executive Order 12866,
and DOT Regulatory Policies and Procedures
This NPRM is not considered a significant regulatory action under
section 3(f) Executive Order 12866 and, therefore, was not reviewed by
the Office of Management and Budget (OMB). The proposed rule is not
considered a significant rule under the Regulatory Policies and
Procedures order issued by the U.S. Department of Transportation (44 FR
11034).
Executive Order 13563 is supplemental to and reaffirms the
principles, structures, and definitions governing regulatory review
that were established in Executive Order 12866 Regulatory Planning and
Review of September 30, 1993. Executive Order 13563, issued January 18,
2011, notes that our nation's current regulatory system must not only
protect public health, welfare, safety, and our environment but also
promote economic growth, innovation, competitiveness, and job
creation.\7\ Further, this executive order urges government agencies to
consider regulatory approaches that reduce burdens and maintain
flexibility and freedom of choice for the public. In addition, federal
agencies are asked to periodically review existing significant
regulations, retrospectively analyze rules that may be outmoded,
ineffective, insufficient, or excessively burdensome, and modify,
streamline, expand, or repeal regulatory requirements in accordance
with what has been learned.
---------------------------------------------------------------------------
\7\ See https://www.whitehouse.gov/the-press-office/2011/01/18/improving-regulation-and-regulatory-review-executive-order.
---------------------------------------------------------------------------
Executive Order 13610, issued May 10, 2012, urges agencies to
conduct retrospective analyses of existing rules to examine whether
they remain justified and whether they should be modified or
streamlined in light of changed circumstances, including the rise of
new technologies.\8\
---------------------------------------------------------------------------
\8\ See https://www.gpo.gov/fdsys/pkg/FR-2012-05-14/pdf/2012-11798.pdf.
---------------------------------------------------------------------------
By building off of each other, these three Executive Orders require
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.''
PHMSA has evaluated our fireworks approval program for
effectiveness and identified areas that could be modified to enhance
the program and increase flexibility for the regulated community. In
this NPRM, the proposed amendments to the HMR will not impose increased
compliance costs on the regulated industry. By proposing to amend the
HMR to allow for an alternative to the approval process for Division
1.4G consumer firework devices, PHMSA will reduce regulatory burden and
increase flexibility to industry, while maintaining an equivalent level
of safety.
A summary of the regulatory evaluation used to support the
proposals presented in this NPRM are discussed below.
Regulatory Evaluation
For the regulatory evaluation of this NPRM, PHMSA assumes:
Between 50 and 90 percent of applicants will choose to
file a Division 1.4G consumer fireworks application with a DOT-approved
FCA instead of filing an application with PHMSA.
Domestic manufacturers and importers of Division 1.4G
fireworks that participate in the voluntary CPSC Domestic Testing
Program will choose certification by a DOT-approved FCA.
The existing DOT-approved explosive test laboratories will
likely apply for approval as a DOT-approved FCA.
A 10-year timeframe to outline, quantify, and monetize the
costs and benefits of the proposal and to demonstrate the net effects
of the proposal
PHMSA's current fireworks approval process has proven effective in
achieving a high level of transportation safety. This high level of
transportation safety is demonstrated by the fact that no
transportation incidents resulting in death or serious injury have been
attributed to the transport of consumer fireworks in the past 40 years.
While continuing to maintain this high level of safety, we expect the
implementation of the proposals in this NPRM will result in the
benefits outweighing the costs.
We anticipate the primary costs will be (1) costs attributed to the
proposed five year recordkeeping requirement; and (2) potential fees
assessed by the DOT-approved FCAs for certification services. The
recordkeeping costs will apply to DOT-approved FCAs, manufactures that
choose certification by a DOT-approved FCA, and importers of fireworks
certified by a DOT-approved FCA. The proposed recordkeeping requirement
is similar to the requirement that requires participants in the
voluntary CPSC Domestic Testing Program keep a certification of
compliance with CPSC standards for three years. This documentation
contains much of the same information PHMSA proposes to require.
Assuming the domestic manufacturers and importers of Division 1.4G
consumer fireworks that participate in the voluntary CPSC Domestic
Testing Program will choose certification by a DOT-approved FCA, we
anticipate the recordkeeping costs will be minimal. While the proposed
recordkeeping requirement is similar to CPSC's recordkeeping
requirement, PHMSA acknowledges that the retention requirement being
two years longer than CPSC's requirement may impose some cost. Also,
there may be recordkeeping costs for those who do not participate in
the voluntary CPSC Domestic Testing Program.
PHMSA assumes that a DOT-approved FCA will likely assess an
explicit cost for its certification services and fireworks
manufacturers will individually consider their business' potential to
benefit from expedited processing against the expected costs of this
certification fee. PHMSA anticipates the benefits of certification
derived from the expedited processing of consumer fireworks
applications,
[[Page 52645]]
resulting in faster time to market for each firework device, outweighs
the cost of any fees assessed by the DOT-approved FCA. PHMSA also
anticipates these benefits will be realized without diminishing the
exemplary transportation safety record that Division 1.4G consumer
fireworks have demonstrated over the past forty years. The benefit-cost
ratio for this NPRM is estimated to be between 3.70 and 3.71. These
benefit and cost figures depend on the assumptions mentioned above.
Total annual benefits derived from this NPRM are expected to be
approximately between $14.5 and 26.5 million, and total annual costs
are expected to be approximately between $4 and $7 million with total
annual net benefits of approximately between $11 and $19 million. Based
on this net positive value, we conclude that adopting the proposed
requirements will result in an increase in overall societal welfare.
The 10-year present value of the net benefits is approximately $80
million to $143 million (discounted at a 3 percent rate) or $55 million
to $98 million (discounted at a 7 percent rate). We expect adopting
this proposal will make regulation of hazardous materials more
efficient, provide regulatory relief to industry, and have no negative
effect on the safe transportation of hazardous materials in the United
States. A summary of the annual costs and benefits and calculated
annual net benefits is displayed in the table below.
Annual Net Benefits \9\
------------------------------------------------------------------------
Low redirected High redirected
application application
rate (50%) rate (90%)
------------------------------------------------------------------------
BENEFITS
------------------------------------------------------------------------
Expected Annual Private-Sector $14,680,000 $26,430,000
Benefits of Expedited Verification.
-----------------------------------
TOTAL ANNUAL BENEFITS........... 14,680,000 26,430,000
------------------------------------------------------------------------
COSTS
------------------------------------------------------------------------
Record Retention Costs:
Costs of 2 Additional Years of 10,200 58,000
Paper Record Retention, All
U.S. Importers per year........
-----------------------------------
Cost for Required Electronic Negligible Negligible
Storage Space, All U.S.
Importers and Manufacturers per
year...........................
-----------------------------------
Total Annual Record 10,200 58,000
Retention Costs............
FCA Processing Costs:
Costs of application processing 3,937,500 7,087,500
conducted by FCAs \10\.........
-----------------------------------
Total Annual FCA Processing 3,937,500 7,087,500
Costs......................
-----------------------------------
TOTAL ANNUAL COSTS...... 3,947,700 7,145,500
-----------------------------------
TOTAL ANNUAL NET 10,732,300 19,284,500
BENEFITS...........
------------------------------------------------------------------------
C. Executive Order 13132
This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 13132
(``Federalism''), and the President's memorandum on ``Preemption''
published in the Federal Register on May 22, 2009 (74 FR 24693). This
proposed rule will preempt State, local, and Indian tribe requirements
but does not propose any regulation that has 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. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply.
---------------------------------------------------------------------------
\9\ Figures are rounded.
\10\ Cost calculated by multiplying the estimated cost of $700
per application by number of Division 1.4G consumer firework
applications redirected to an FCA (i.e. for 50% redirected 5,625 x
$700 and for 90%.
---------------------------------------------------------------------------
The Federal hazardous materials transportation law, 49 U.S.C. 5101-
5128, contains an express preemption provision (49 U.S.C. 5125 (b))
that preempts State, local, and Indian tribe requirements on the
following subjects:
(1) The designation, description, and classification of hazardous
materials;
(2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
(3) The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
contents, and placement of those documents;
(4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; and
(5) 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 all the covered subject areas above.
If adopted as final, this rule will preempt any State, local, or Indian
tribe requirements concerning these subjects unless the non-Federal
requirements are ``substantively the same'' as the Federal
requirements. Furthermore, this proposed rule is necessary to update,
clarify, and provide relief from regulatory requirements.
Federal hazardous materials transportation law provides at Sec.
5125(b)(2) that, if DOT issues a regulation concerning any of the
covered subjects, DOT must determine and publish in the Federal
Register the effective date of Federal preemption. The effective date
may not be earlier than the 90th day following the date of issuance of
the final rule and not later than two years after the date of issuance.
PHMSA has determined that the effective date of Federal preemption for
[[Page 52646]]
these requirements will be one year from the date of publication of a
final rule in the Federal Register.
D. Executive Order 13175
This NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this NPRM does
not significantly or uniquely affect the communities of the Indian
tribal governments and does not impose substantial direct compliance
costs, the funding and consultation requirements of Executive Order
13175 do not apply.
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities
unless the agency determines that a rule is not expected to have a
significant impact on a substantial number of small entities. The total
number of U.S. importers that are expected to be impacted by the
proposed rulemaking is estimated to be between 62 and 206. PHMSA chose
to use a range to reflect an uncertainty in the number of U.S.
importers. This uncertainty is a result of the high turnover in the
fireworks industry resulting in large year-to-year fluctuations in the
number of importers. This range is a result of combining estimated
import data with data provided by a consumer fireworks trade
association. The figure of 62 was derived from import data obtained
from a publically available business directory and PHMSA's approvals
database; while the figure of 206 was derived from statistics provided
by AFSL, a consumer fireworks trade association. Specifically, the
figure of 206 is derived from the AFSL Consumer Fireworks Membership
list that shows 175 members. AFSL claims to represent 85 percent of all
U.S. consumer fireworks importers in the U.S., therefore, we calculated
a total of 206 (175/.85 = 206). PHMSA believes the actual number of
U.S. importers lies somewhere between 62 and 206. PHMSA estimates the
number of U.S. manufacturers to be five, based on the number of hazmat
registrants. This results in a range from 67 to 211 U.S. manufacturers
and importers. PHMSA seeks comment specifically on the accuracy of
these numbers.
The proposed rule provides an additional, voluntary option for
manufacturers to apply to a DOT-approved FCA for certification of
Division 1.4 consumer fireworks, in lieu of submitting an application
to PHMSA for approval. The expected costs associated with this
rulemaking relate to recordkeeping since copies of documentation will
have to be retained for two additional years over current practice (for
U.S. importers and fireworks manufacturers who elect to examine and
certify new devices with an FCA instead of seeking an approval from
PHMSA). Fireworks manufacturers may pay fees assessed by FCAs for
certification services. PHMSA assumes that most will see the benefits
of FCA certification as justifying the fees involved. However, the
costs are voluntary costs.
Benefits of the proposed certification option will be derived from
the expedited processing of consumer fireworks applications, resulting
in faster time to market for each firework device. Benefits may be
realized from the reduction in PHMSA's approvals application workload,
which allows for administrative cost savings and more resources for
PHMSA Approvals and Permits staff. These resources may allow for
additional scrutiny to higher risk hazardous materials approvals
applications. Total annual benefits are expected to be between
approximately $14.5 million and $26.5 million, and total annual costs
are expected to be approximately between $4 and $7 million, resulting
in total annual net benefits of between approximately $11 million and
$19 million.
Overall, by proposing increased regulatory flexibility, this
proposed rule should reduce the compliance burden on the regulated
industry, including small entities, without compromising transportation
safety. Therefore, we certify that this proposed rulemaking will not
have a significant or negative economic impact on a substantial number
of small entities. Further information on the estimates and assumptions
used to evaluate the potential impacts to small entities is available
in the Regulatory Impact Assessment that has been placed in the public
docket for this rulemaking. In this notice, PHMSA is soliciting
comments on the number of affected entities and the preliminary
conclusion that the proposals in this NPRM will not cause a significant
economic impact on a substantial number of small entities.
This notice has been developed in accordance with Executive Order
13272 (``Proper Consideration of Small Entities in Agency Rulemaking'')
and DOT's procedures and policies to promote compliance with the
Regulatory Flexibility Act to ensure that potential impacts of draft
rules on small entities are properly considered.
F. Paperwork Reduction Act
PHMSA currently has an approved information collection under OMB
Control Number 2137-0557, entitled ``Approvals for Hazardous
Materials,'' with an expiration date of May 31, 2014. While this NPRM
may result in a slight increase in the annual burden and cost to OMB
Control Number 2137-0557 for proposed minor record-keeping requirements
under Sec. Sec. 173.64 and 173.65, this NPRM should result in a
decrease in the burden on the fireworks industry by increasing
regulatory flexibility, which will provide manufacturers of Division
1.4 consumer fireworks with an alternative that should be more
efficient than the current approval process.
Under the Paperwork Reduction Act of 1995, no person is required to
respond to an information collection unless it has been approved by OMB
and displays a valid OMB control number. Section 1320.8(d), title 5,
Code of Federal Regulations requires that PHMSA provide interested
members of the public and affected agencies an opportunity to comment
on information and recordkeeping requests.
This notice identifies revised information collection requests that
PHMSA will submit to OMB for approval based on the requirements in this
proposed rule. PHMSA has developed burden estimates to reflect changes
in this proposed rule and estimates that the information collection and
recordkeeping burdens will be revised as follows:
OMB Control No. 2137-0557:
Increase in Annual Number of Respondents: 211.
Increase in Annual Responses: 5,175.
Increase in Annual Burden Hours: 430.
Increase in Annual Burden Costs: $14,875.
PHMSA specifically requests comments on the information collection
and recordkeeping burdens associated with developing, implementing, and
maintaining these requirements for approval under this proposed rule.
Requests for a copy of this information collection should be
directed to Steven Andrews or T. Glenn Foster, Office of Hazardous
Materials Standards (PHH-12), Pipeline and Hazardous Materials Safety
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001,
Telephone (202) 366-8553.
Address written comments to the Dockets Unit as identified in the
ADDRESSES section of this rulemaking. We must receive comments
regarding information collection burdens prior to the close of the
comment period identified in the DATES section of this
[[Page 52647]]
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) 395-6974.
G. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN contained in the heading of
this document can be used to cross-reference this action with the
Unified Agenda.
H. Unfunded Mandates Reform Act of 1995
This proposed rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$141.3 million or more to either state, local or tribal governments, in
the aggregate, or to the private sector, and is the least burdensome
alternative that achieves the objective of the rule.
I. Environmental Assessment
The National Environmental Policy Act of 1969 (NEPA), as amended
(42 U.S.C. 4321-4347), and implementing regulations by the Council on
Environmental Quality (40 CFR part 1500) require Federal agencies to
consider the consequences of Federal actions and prepare a detailed
statement on actions that significantly affect the quality of the human
environment.
The purpose of this rulemaking is to allow for an alternative to
the approval process for Division 1.4G consumer fireworks. The
alternatives considered in the environmental analysis include: (1) the
proposed action, that is, permitting an alternative process for
Division 1.4G consumer fireworks to be certified by a DOT-approved FCA;
and (2) the ``no action'' alternative, meaning that the regulatory
scheme will stay the same and the proposed new alternative will not be
implemented. PHMSA believes that both alternatives present little or no
environmental impact on the quality of the human environment because
both alternatives deal with the processing of applications.
Furthermore, the proposed amendments only affect the authorization
process that deems Division 1.4G consumer fireworks safe for transport
and has no impact on any other transport requirements (e.g. packaging,
hazard communication, etc.). The proposed action would provide an
additional application process that would not impact the exemplary
safety record that Division 1.4G consumer fireworks have demonstrated
over the past forty years. Therefore, PHMSA has initially determined
that the implementation of the proposed rule will not have any
significant impact on the quality of the human environment. PHMSA,
however, invites comments about environmental impacts that the proposed
rule might pose.
J. Privacy Act
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
https://www.dot.gov.
K. International Trade Analysis
Under E.O. 13609, agencies must 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 will be adopted in the absence of such cooperation.
International regulatory cooperation can also reduce, eliminate, or
prevent unnecessary differences in regulatory requirements.
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. For purposes of these requirements,
Federal agencies may participate in the establishment of international
standards, 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.
PHMSA participates in the establishment of international standards
in order to protect the safety of the American public. We have assessed
the effects of the proposed rule, and find that because the proposed
alternative process mirrors the current approval process, it will not
cause unnecessary obstacles to foreign trade. Accordingly, this
rulemaking is consistent with Executive Order 13609 and PHMSA's
obligations under the Trade Agreement Act, as amended.
L. 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) that are
developed or adopted by voluntary consensus standard bodies.
This proposed rulemaking involves one technical standard: American
Pyrotechnics Association (APA), APA Standard 87-1 Standard for
Construction and Approval for Transportation of Fireworks, Novelties,
and Theatrical Pyrotechnics, December 1, 2001 version. This technical
standard is listed in 49 CFR 171.7.
VI. List of Subjects
49 CFR Part 107
Administrative practice and procedure, Hazardous materials
transportation, Penalties, Reporting and recordkeeping requirements.
49 CFR Part 172
Education, Hazardous materials transportation, Hazardous waste,
Labeling, Markings, Packaging and containers, Reporting and
recordkeeping requirements.
49 CFR Part 173
Hazardous materials transportation, Packaging and containers,
Radioactive materials, Reporting and recordkeeping requirements,
Uranium.
In consideration of the foregoing, 49 CFR chapter I is proposed to
be amended as follows:
PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES
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
(28 U.S.C. 2461 note), Pub. L. 104-121 sections 212-213; Pub. L.
104-134 section 31001; 49 CFR 1.45 and 1.53.
2. In Part 107, revise subpart E to read as follows:
[[Page 52648]]
Subpart E--Designation of Certification Agency
Sec. 107.402 Application for designation as a certification agency.
(a) Any person seeking designation as a certification agency must
apply in writing to the Associate Administrator for Hazardous Materials
Safety (PHH-32), Department of Transportation, East Building, 1200 New
Jersey Avenue SE., Washington, DC 20590-0001. Alternatively, the
application with any attached supporting documentation in an
appropriate format may be submitted by facsimile (fax) to: (202) 366-
3753 or (202) 366-3308 or by electronic mail (email) to:
approvals@dot.gov. Each application must be signed and certified to be
correct by the applicant or, if the applicant is an organization, by an
authorized officer or official representative of the organization. Any
false statement or representation, or the knowing and willful
concealment of a material fact, may subject the applicant to
prosecution under the provisions of 18 U.S.C. 1001, and result in the
denial or termination of a designation.
(b) Each application for designation as a certification agency must
be in English and include the following information:
(1) Name and address of the applicant, including place of
incorporation if a corporation. In addition, if the applicant is not a
resident of the United States, the name and address of a permanent
resident of the United States designated in accordance with Sec.
105.40 to serve as agent for service of process.
(2) A statement that the applicant will allow the Associate
Administrator or a designated official to inspect its records and
facilities in so far as they relate to the certification activities and
will cooperate in the conduct of such inspections.
(3) Any additional information relevant to the applicant's
qualifications, if requested by the Associate Administrator.
(4) Information required by the provisions in subpart H of this
part.
(c) Packaging and Lighter Certification Agencies. In addition to
the requirements in (b), the application must include the following
information:
(1) A listing, by DOT specification (or special permit) number, or
U.N. designation, of the types of packagings for which certification
authority is sought.
(2) A personnel qualifications plan listing the qualifications that
the applicant will require of each person to be used in the performance
of each packaging certification function. As a minimum, these
qualifications must include:
(i) The ability to review and evaluate design drawings, design and
stress calculations;
(ii) A knowledge of the applicable regulations of subchapter C of
this chapter and, when applicable, U.N. standards; and
(iii) The ability to conduct or monitor and evaluate test
procedures and results; and
(iv) The ability to review and evaluate the qualifications of
materials and fabrication procedures.
(3) A statement that the applicant will perform its functions
independent of the manufacturers and owners of the packagings
concerned.
(4) If the applicant's principal place of business is in a country
other than the United States, a copy of the designation from the
Competent Authority of that country delegating to the applicant an
approval or designated agency authority for the type of packaging for
which a DOT designation is sought, and a statement that the Competent
Authority also delegates similar authority to U.S. Citizens or
organizations having designations under this subpart from PHMSA.
(d) Fireworks Certification Agency. Prior to reviewing, and
certifying Division 1.4G consumer fireworks for compliance with APA
Standard 87-1 as specified in part 173 of this chapter, a person must
apply to, and be approved by, the Associate Administrator to act as a
firework certification agency. A person approved as a firework
certification agency is not a PHMSA agent or representative. In
addition to (b), the application must include the following
information:
(1) Name, address, and country of each facility where Division 1.4G
consumer fireworks test results and application materials are reviewed
and certified;
(2) Detailed description of the applicant's qualifications and
ability to inspect, review, and certify that the requirements specified
by part 173 of this chapter have been meet. At a minimum, these
qualifications must include ability to:
(i) Review and evaluate design drawings, fabrication procedures,
and applications to certify that they are in accordance with the APA
Standard 87-1; and
(ii) Evaluate thermal stability test procedures and results.
(3) Detailed description of the operating procedures to be used by
the firework certification agency to review, and certify that a
Division 1.4G consumer fireworks application meets the requirements
specified by part 173 of this chapter;
(4) Name, address, and principal business activity of each person
having any direct or indirect ownership interest in the applicant
greater than three percent and any direct or indirect ownership
interest in each subsidiary or division of the applicant;
(5) Name and a statement of qualifications of each individual the
applicant proposes to employ to inspect, review, and certify test
results and certify that application materials comply with APA Standard
87-1;
(6) A statement that the applicant will perform its functions
independent of the manufacturers, transporters, importers, and owners
of the fireworks; and
(7) A signed certification declaring that the information provided
in the approval application is true and correct and the application has
not been submitted to any other entity, and the date on which this
certification was signed.
(8) If approved, the results of fireworks certification evaluation
must be submitted to PHMSA on a schedule and in a manner specified in
the DOT-issued designation approval.
* * * * *
Sec. 107.403 Designation of certification agencies.
* * * * *
(c) Within 30 days of an initial denial of an application under
paragraph (b) of this section, the application may file an amended
application. If the application for designation is denied, the
applicant may file for reconsideration in accordance with the
provisions in subpart H of this part.
(d) The provisions in subpart H will apply to the modification,
suspension, and termination of an approval submitted under this
subpart.
* * * * *
Sec. 107.405 Termination of certification agencies.
* * * * *
Sec. 107.405 [Reserved]
* * * * *
PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, TRAINING
REQUIREMENTS, AND SECURITY PLANS
3. The authority citation for part 172 continues to read as
follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.53.
[[Page 52649]]
4. In Sec. 172.101, the Hazardous Materials Table is amended by
revising entries under ``[REVISE]'' in the appropriate alphabetical
sequence to read as follows:
Sec. 172.101 Purpose and use of hazardous materials table.
* * * * *
Sec. 172.101--Hazardous Materials Table
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(8) Packaging (Sec. (9) Quantity (10) Vessel
Special 173.***) limitations stowage
Hazardous materials descriptions Hazard Identification Label provisions ---------------------------------------------------------------------------
Symbols and proper shipping names class or Nos. PG codes (Sec. Cargo
division 172.102) Exceptions Non- Bulk Passenger aircraft Location Other
bulk aircraft/rail only
(1) (2).............................. (3) (4) (5) (6) (7) (8A) (8B) (8C) (9A) (9B) (10A) (10B)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[REVISE]
* * * * * * *
Fireworks........................ 1.4G UN 0336 II 1.4G 108 65 62 None Forbidden 75 kg 06
* * * * * * *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
5. In Sec. 172.320, paragraph (b) and paragraph (d) are revised to
read as follows:
Sec. 172.320 Explosive hazardous materials.
* * * * *
(b) Except for fireworks approved in accordance with Sec. 173.64
of this subchapter, a package of Class 1 materials may be marked as
follows, in lieu of the EX number required by paragraph (a) of this
section:
(1) With a national stock number issued by the Department of
Defense or identifying information, such as a product code required by
regulations for commercial explosives specified in 27 CFR part 555, if
the national stock number or identifying information can be
specifically associated with the EX number assigned; or
(2) For Division 1.4G consumer fireworks, with a FX number issued
by a fireworks certification agency approved in accordance with 49 CFR
part 107 subpart E and classified in accordance with Sec. 173.65.
* * * * *
(d) The requirements of this section do not apply if the EX number,
FX number, product code or national stock number of each explosive item
described under a proper shipping description is shown in association
with the shipping description required by Sec. 172.202(a) of this
part. Product codes and national stock numbers must be traceable to the
specific EX number assigned by the Associate Administrator or FX number
assigned by a DOT approved fireworks certification agency.
* * * * *
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS
6. The authority citation for part 173 continues to read as
follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45, 1.53.
7. In Sec. 173.56, the introductory text for paragraph (b) is
revised to read as follows, and paragraph (j) is removed and reserved.
Sec. 173.56 New explosives--definitions and procedures for
classification and approval.
* * * * *
(b) Examination, classification and approval. Except as provided in
Sec. Sec. 173.64 and 173.65 of this subpart, no person may offer a new
explosive for transportation unless that person has specified to the
examining agency the ranges of composition of ingredients and
compounds, showing the intended manufacturing tolerances in the
composition of substances or design of articles which will be allowed
in that material or device, and unless it has been examined, classed
and approved as follows:
* * * * *
(j) [Reserved]
* * * * *
8. In Sec. 173.59, add new definition for ``consumer firework'' in
appropriate alphabetical sequence to read as follows:
Sec. 173.59 Description of terms for explosives.
* * * * *
Consumer firework. Any completed firework device that is packaged
in a form intended for use by the public that complies with the
construction, performance, chemical composition, and labeling
requirements codified by the U.S. Consumer Product Safety Commission in
Title 16, CFR parts 1500 and 1507. A consumer firework does not include
firework devices, kits or components banned by the U.S. Consumer
Product Safety Commission in 16 CFR 1500.17 (a)(8).
* * * * *
9. Add new section Sec. 173.64 to read as follows:
Sec. 173.64 Exceptions for Division 1.3 and 1.4 fireworks.
(a) Notwithstanding the requirements of Sec. 173.56(b), Division
1.3 and 1.4 fireworks (see Sec. 173.65 for Division 1.4G consumer
fireworks) may be classed and approved by the Associate Administrator
without prior examination and offered for transportation if the
following conditions are met:
(1) The fireworks are manufactured in accordance with the
applicable requirements in APA Standard 87-1 (IBR, see Sec. 171.7 of
this subchapter);
(2) The 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[emsp14][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 Standard 87-
1, and is notified in writing by the Associate
[[Page 52650]]
Administrator that the fireworks have 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 APA Standard 87-1, that the descriptions and technical
information contained in the application are complete and accurate, and
that no duplicate application has been submitted to a DOT-approved
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).
* * * * *
10. Add new section Sec. 173.65 to read as follows.
Sec. 173.65 Exceptions for Division 1.4G Consumer Fireworks.
(a) Notwithstanding the requirements of paragraphs Sec. Sec.
173.56(b), 173.56(f), 173.56(i), and 173.64, Division 1.4G consumer
fireworks may be offered for transportation provided the following
conditions are met:
(1) The fireworks are manufactured in accordance with the
applicable requirements in APA Standard 87-1 (IBR, see Sec. 171.7 of
this subchapter);
(2) The device must pass a thermal stability test. The test must be
performed by maintaining the device, or a representative prototype of
the device at a temperature of 75 [deg]C (167[emsp14][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 of the Division 1.4G consumer firework applies
in writing to a DOT-approved fireworks certification agency, and is
notified in writing by the fireworks certification agency that the
firework has been:
(i) Evaluated, and examined, as required, for a Division 1.4G
consumer firework;
(ii) Certified that it complies with APA Standard 87-1, and meets
the requirements of this section; and
(iii) Assigned an FX number followed by a corresponding
certification report identifier (e.g., FX-XXX-YYY, where XXX represents
the firework certification agency and YYY represents the certification
report identifier that is traceable to the specific manufacturer and
firework device transported).
(4) The manufacturer's application must be complete and include
relevant background data, copies of all applicable drawings, test
results, and any other pertinent information on each device for which
certification is being requested. The manufacturer must sign the
application and certify that the device for which certification is
requested conforms to APA Standard 87-1, that the descriptions and
technical information contained in the application are complete and
accurate, and that no duplicate applications have been submitted to
PHMSA. If the application is denied, the DOT-approved fireworks
certification agency must notify the manufacturer in writing of the
reasons for the denial. Following the issuance of a denial from a DOT-
approved fireworks certification agency, a manufacturer may submit the
denial and original application to PHMSA for reconsideration in
accordance with subpart H.
(b) Recordkeeping requirements. Following the certification of each
Division 1.4G consumer firework as permitted by paragraph (a) of this
section, the manufacturer, importer, and fireworks certification agency
must maintain a record or an electronic image of the record
demonstrating compliance with this section. This record must be
accessible at or through its principal place of business and be made
available, upon request, to an authorized official of a Federal, State,
or local government agency at a reasonable time and location. A copy of
this record must be retained for five years after the material is
imported. Records complying with firework requirements of other Federal
or international agencies may be used to satisfy the recordkeeping
requirements of this paragraph to the extent that such records address
the recordkeeping components specified in this section. For Division
1.4G consumer fireworks certified by a DOT-approved fireworks
certification agency, the record must include:
(1) The FX number of the entity that certified that the firework
device complies with APA Standard 87-1, including a certification
report identifier that is traceable to the manufacturer and specific
firework device transported;
(2) A copy of the approval application submitted to the DOT-
approved fireworks certification agency; and
(3) A copy of any certification documentation completed by the
fireworks certification agency in accordance with the DOT-approved
procedures.
(c) Hazard Communication. Following the certification of each
Division 1.4G consumer firework as permitted by paragraph (a) of this
section, each package containing a Division 1.4G consumer firework must
be marked and labeled in accordance with subpart D and E of part 172.
* * * * *
Issued in Washington, DC, on August 24, 2012, under authority
delegated in 49 CFR part 106.
Magdy El-Sibaie,
Associate Administrator for Hazardous Materials Safety, Pipeline and
Hazardous Materials Safety Administration.
[FR Doc. 2012-21360 Filed 8-29-12; 8:45 am]
BILLING CODE 4910-60-P
