Hazardous Materials: Streamlining Requirements for the Approval of Certain Energetic Materials, 83514-83530 [2023-25887]
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Federal Register / Vol. 88, No. 229 / Thursday, November 30, 2023 / Proposed Rules
Dated: November 23, 2023.
R.D. Manning,
Captain, U.S. Coast Guard, Captain of the
Port Sector Los Angeles-Long Beach.
[FR Doc. 2023–26341 Filed 11–29–23; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
49 CFR Parts 107, 171, and 173
[Docket No. PHMSA–2020–0103 (HM–257A)]
RIN 2137–AF50
Hazardous Materials: Streamlining
Requirements for the Approval of
Certain Energetic Materials
Pipeline and Hazardous
Materials Safety Administration
(PHMSA), Department of Transportation
(DOT).
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
PHMSA proposes to amend
the Hazardous Materials Regulations to
revise the classification and approval
process for certain low-hazard
fireworks; to revise classification criteria
for small arms cartridges to include
tracer ammunition; to include the
PHMSA portal as the method to submit
applications for all explosives
approvals; and to allow for voluntary
termination of an explosive approval by
the approval holder.
DATES: Comments must be submitted by
February 28, 2024. PHMSA will
consider late-filed comments to the
extent possible.
ADDRESSES: You may submit comments
by identification of the docket number
(PHMSA–2020–0103 [HM–257A]) by
any of the following methods:
Federal Rulemaking Portal: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Fax: 1–202–493–2251.
Mail: Docket Management System,
U.S. Department of Transportation,
Docket Operations, M–30, Ground
Floor, Room W12–140, 1200 New Jersey
Avenue SE, Washington, DC 20590–
0001.
Hand Delivery: U.S. Department of
Transportation, Docket Operations, M–
30, Ground Floor, Room W12–140, 1200
New Jersey Avenue SE, Washington, DC
20590–0001 between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal
holidays.
Instructions: Include the agency name
and docket number PHMSA–2020–0103
(HM–257A) or RIN 2137–AF50 for this
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SUMMARY:
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rulemaking at the beginning of your
comment. Note that all comments
received will be posted without change
to https://www.regulations.gov
including any personal information
provided. If sent by mail, comments
must be submitted in duplicate. Persons
wishing to receive confirmation of
receipt of their comments must include
a self-addressed stamped postcard.
Docket: For access to the public
docket to read background documents
or comments received, visit https://
www.regulations.gov or the DOT Docket
Operations Office (see ADDRESSES).
Confidential Business Information:
Confidential Business Information (CBI)
is commercial or financial information
that is both customarily and actually
treated as private by its owner. Under
the Freedom of Information Act (FOIA;
5 U.S.C. 552), CBI is exempt from public
disclosure. If your comments responsive
to this NPRM contain commercial or
financial information that is customarily
treated as private, that you actually treat
as private, and that is relevant or
responsive to this NPRM, it is important
that you clearly designate the submitted
comments as CBI. Please mark each
page of your submission containing CBI
as ‘‘PROPIN.’’ Submissions containing
CBI should be sent to Eugenio Cardez,
U.S. Department of Transportation, 1200
New Jersey Avenue SE, Washington, DC
20590–0001. Any commentary PHMSA
receives that is not specifically
designated as CBI will be placed in the
public docket for this rulemaking.
FOR FURTHER INFORMATION CONTACT: Mr.
Eugenio Cardez, Transportation
Specialist, Standards and Rulemaking
Division, Office of Hazardous Materials
Safety, 202–366–8553, 1200 New Jersey
Avenue SE, Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Low Hazard Fireworks
B. Tracer Ammunition
C. Changes to the Approvals Process
II. Incorporation by Reference Discussion
Under 1 CFR Part 51
III. Proposed Amendments
A. Establishing Exceptions for Ground and
Novelty Device Fireworks
B. Authorizing the Self-Classification of
Tracer Ammunition
C. Amending the Approvals Process
IV. Section-by-Section Review
V. Regulatory Analyses and Notices
A. Statutory/Legal Authority
B. Executive Orders 12866 and 14094; DOT
Regulatory Policies and Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act and Executive
Order 13272
F. Paperwork Reduction Act
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G. Unfunded Mandates Reform Act of 1995
H. Draft Environmental Assessment
I. Privacy Act
J. Executive Order 13609 and International
Trade Analysis
K. National Technology Transfer and
Advancement Act
L. Severability
M. Cybersecurity and Executive Order
14028
I. Background
The pyrotechnic industry is a global
logistics supply chain comprised of
mostly foreign fireworks manufacturers
and domestic importers, retailers,
distributors, carriers, and consumers.
Fireworks are a Class 1 explosive
material in accordance with the
Hazardous Materials Regulations (HMR;
49 Code of Federal Regulations (CFR)
parts 171–180). Class 1 explosives are
divided into six divisions based on their
explosion hazard: 1.1, 1.2, 1.3, 1.4, 1.5,
and 1.6. PHMSA proposes to amend the
classification and approval process of
certain low-hazard fireworks of Division
1.4G. As defined in § 173.50 of the
HMR, Division 1.4 consists of
explosives that present a minor
explosion hazard. Division 1.4
explosives have explosive effects that
are largely confined to the package; no
projection of fragments of appreciable
size or range is to be expected; and an
external fire must not cause virtually
instantaneous explosion of almost the
entire contents of the package.
Explosives are assigned compatibility
codes used to specify the controls for
the transportation, and storage related
thereto, of explosives and to prevent an
increase in hazard that might result if
certain types of explosives were stored
or transported together. Explosives
assigned a ‘‘G’’ code are not limited to
fireworks and may also be defined as
pyrotechnic substances or articles
containing a pyrotechnic substance, or
articles containing both an explosive
substance and an illuminating,
incendiary, tear-producing or smokeproducing substance.
Subpart C of part 173 details
requirements for the classification and
packaging of Class 1 explosive materials
and specifies that explosives, including
fireworks, must be approved and
assigned an explosives approval number
—i.e., an EX number—by PHMSA,
based on actual testing and
classification, prior to transportation to,
from, and within the United States.
Section 173.64 permits Division 1.3G
and 1.4G fireworks to be approved
without prior examination based on
certain conditions, including
compliance with the provisions of the
2018 American Pyrotechnic Association
(APA) Standards 87–1A, 1B, and 1C,
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which are incorporated by reference in
§ 171.7.1 Further, § 173.65 permits—in
lieu of an approval—Division 1.4G
consumer fireworks (as defined in
§ 171.8) to be certified by a DOTapproved Fireworks Certification
Agency (FCA). After the FCA reviews
the consumer fireworks application and
certifies it meets the requirements, the
FCA assigns an FC number in place of
an EX number for Division 1.4G
consumer fireworks.
All fireworks transported to, from,
and within the United States must be
approved by PHMSA or certified by an
FCA. The current approval process
requires PHMSA personnel to conduct a
multi-step review of each application,
which includes accepting an
application, entering application data
into a database; reviewing the
application for completeness and
compliance with the APA standard;
drafting the final action letter;
conducting the final review; and signing
and issuing the final approval. PHMSA
estimates its review process takes about
two hours per application, for an
estimated 425 labor hours annually.
PHMSA provides approvals free of
charge as a public service to
manufacturers. However, manufacturers
have the option to use commercial FCAs
for Division 1.4 consumer fireworks,
which certify products for a fee, and
may process approvals faster. See the
preliminary regulatory impact analysis
(PRIA) in the docket for this rulemaking
for additional information.2
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A. Low Hazard Fireworks
Low hazard fireworks refer to a group
of explosive articles that are not
designed to leave ground level, contain
no aerial components, and contain less
than 100 grams of chemical composition
per tube. These devices have a minimal
and well-understood hazard as
explosives. Specifically, low hazard
fireworks can only be manufactured
using chemicals from the ‘‘Permitted
and Restricted Chemical Table for
Consumer Fireworks and Novelties,’’ 3
and reports 4 are restricted to 50
1 The 2018 APA Standards 87–1A, 1B, and 1C
were incorporated by reference in the Hazardous
Materials: Adoption of Miscellaneous Petitions To
Reduce Regulatory Burdens Final Rule. 85 FR
75680 (Nov. 25, 2020). See https://www.federal
register.gov/documents/2020/11/25/2020-23712/
hazardous-materials-adoption-of-miscellaneouspetitions-to-reduce-regulatory-burdens.
2 The PRIA is available in the regulatory docket
(Docket ID: PHMSA–2020–0103) at
www.regulations.gov.
3 https://www.phmsa.dot.gov/sites/
phmsa.dot.gov/files/2021-09/2018%20APA%20871%20A.pdf.
4 Report: A concussive effect and flash of light
produced by the ignition of a chemical
composition.
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milligrams of report composition. The
European community conducted
extensive fireworks testing prior to the
development of the United Nations (UN)
default fireworks table. The devices
proposed under this rulemaking for
classification as Division 1.4G fireworks
are consistent with the UN default table,
as well as 30 years of classification
experience under the APA standards.
Low hazard fireworks include ground
and novelty firework devices, as
currently listed in the 2018 APA
Standard 87–1A.
Ground Devices
The 2018 APA Standard 87–1A
defines ‘‘ground device’’ as a device
designed to produce its effects at or near
ground level. The following 17
individual ground devices are defined
as low hazard fireworks and may be
approved or certified for transportation
in accordance with the HMR provided
they meet the requirements for
construction, formulation, and
packaging: Chaser, Crackling Ball,
Crackling Strip, Crackling Tube,
Firecracker, Flasher/Strobe, Flitter
Sparkler, Fountain Cone, Fountain
Cylindrical, Fountain Nitrocellulose,
Ground Spinner, Illuminating Torch,
Smoke, Snake, Specialty Device, Wheel,
and Wire Sparkler or Dipped Stick.
Ground devices meeting the
provisions of the 2018 APA Standard
87–1A are classified and described as
‘‘UN0336, Fireworks, Division 1.4G.’’
Currently, ground devices are either
approved by PHMSA personnel or
certified by an FCA upon completion of
a multi-step review of each application.
PHMSA proposes streamlining the
approval or certification process of these
fireworks by allowing self-certification
using an online application in the
PHMSA portal with an automated
process for review and issuance of a
certification. This automated process
may be used for the low hazard
fireworks identified in this rule in lieu
of the current process and would no
longer require PHMSA or FCA
personnel to conduct time-consuming
reviews of each application or impose a
cost on manufacturers who opt to use a
FCA to certify these fireworks.
Manufacturers of fireworks that meet
the required criteria for the
construction, formulation, and
packaging of these ground devices—
specifically discussed in Section II:
Proposed Amendments—would certify
compliance with specified conditions
and limitations online and receive a
certificate with a unique identifier
number (i.e., FW number) for each
firework type. The online system will
provide immediate comparison of the
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technical information provided against
the criteria established for low hazard
fireworks. Because of the low hazard
associated with these fireworks, and
because we maintain oversight through
PHMSA’s Quality Assurance and
Quality Control (QA/QC) review
program 5 of applications submitted
through the PHMSA portal, PHMSA
believes the current safety level for
transport of these fireworks will be
maintained when using this process for
certification of eligible ground device
fireworks.
Multi-tube devices, such as cake and
combination fireworks devices, are
excluded from this rulemaking. PHMSA
is not proposing that multi-tube devices
be allowed to be self-certified via the
PHMSA portal at this time; however,
manufacturers will still use the PHMSA
portal for submitting an application for
the standard explosive approval.
Novelty Devices
In 1995, PHMSA issued ‘‘Guidance
and Criteria for Fireworks Novelties,’’
which sought to resolve confusion
regarding novelty devices (i.e.,
novelties) and PHMSA’s explosives
regulations. The guidance document
was later reissued under the same name
in 2005 and 2015, with only editorial
changes. The current version 6 includes
five novelties that—when shipped
domestically by ground, rail, or vessel—
may be transported as not regulated as
explosives when manufactured in
accordance with the provisions outlined
for each type of device as specified in
the 2001 APA Standard 87–1. The 2018
APA Standard 87–1A includes two
additional novelties that may be
excluded from HMR requirements—for
a total of seven novelties for
consideration for approval or
certification for transportation as not
subject to further regulation in
accordance with proposed changes to
the HMR, provided they meet the
conditional requirements for
construction, formulation, packaging,
and transportation mode. The seven
novelties are Booby Trap/Pull Apart,
Novelty Flitter Sparkler, Party Popper,
Novelty Snake, Snapper, Novelty Wire
Sparkler or Novelty Dipped Stick, and
Novelty Smoke Device. However, when
these novelties are prepared for
5 The PHMSA QA/QC Low Hazard Fireworks
Review Program is currently under development
while completing development of the electronic
process, and when finalized will be similar to the
PHMSA Fireworks FCA QA/QC Review Program.
6 See ‘‘Guidance and Criteria for Fireworks
Novelties,’’ available at: https://www.phmsa.
dot.gov/sites/phmsa.dot.gov/files/docs/approvalsand-permits/hazmat/energetic-materials-approvals/
57711/inalguidancefandcriteriaforfireworksnovelty
devices03192015.pdf.
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transportation by air, they must be
classified and described as ‘‘UN3178,
Flammable solid, inorganic, n.o.s.
(novelties)’’ and shipped in accordance
with requirements of the HMR.
A PHMSA approval or FCA
certification is not required for novelties
manufactured in accordance with the
provisions outlined for each type
specified in the APA standards when
transported domestically by ground,
rail, or vessel, but this exception is only
applicable within the United States and
its territories. PHMSA proposes to
authorize the use of the automated selfcertification process to enable the
manufacturer to receive a certificate for
use with international transportation.
Manufacturers of novelties meeting the
required criteria for the construction,
formulation, and packaging of these
devices would certify compliance with
specified conditions and limitations
online and receive a certificate with a
unique identifier (defined as an ‘‘FW
number’’) for each firework type, in the
same manner proposed for ground
devices.
There have been no systemic safety
issues or safety concerns involving
shipments of novelties that meet the
requirements of both the APA standards
and PHMSA’s guidance memo. The
history of safe shipments helps
demonstrate that the proposed
amendment will not have an adverse
effect on safe transportation of these
fireworks. Rather, the proposed changes
++in this NPRM will codify existing
guidance to promote increased
regulatory clarity and consistency,
which will—at a minimum—maintain
the current level of safety. Publication of
a final rule will supersede previously
issued guidance on this matter.
B. Tracer Ammunition
Section 173.56(h) authorizes selfclassification of certain types of small
arms cartridges into Division 1.4S,
provided certain conditions are met.
Explosives assigned an ‘‘S’’ code are
defined as substances or articles so
packed or designed that any hazardous
effects arising from accidental
functioning are limited to the extent that
they do not significantly hinder or
prohibit firefighting or other emergency
response efforts in the immediate
vicinity of the package. In particular,
§ 173.56(h)(3) specifies a condition that
the ammunition has an inert projectile
or is blank. However, the current criteria
is silent on whether this ammunition
includes tracer ammunition. Tracer
ammunition utilizes a small amount of
a pyrotechnic charges at the base or as
coating of the projectile to make the
trajectory of the projectile visible to the
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naked eye. As such, considering the
§ 173.56(h)(3) condition, affected
entities have expressed uncertainty
whether tracer ammunition is
considered inert and, therefore, qualifies
for the exception in paragraph (h).
PHMSA considers the small amount of
pyrotechnic charge as a negligible
quantity of explosive material compared
to the quantity of propelling charge
contained within the cartridge itself,
and this small amount of pyrotechnic
charge at the base of or coated on the
projectile does not increase the hazard
in a bonfire test nor make unintentional
initiation any more likely. In this
rulemaking, PHMSA is considering
allowing tracer ammunition to be
eligible for self-classification as a
Division 1.4S material provided all
criteria outlined in § 173.56(h) are met.
C. Changes to the Approval Process
Currently, as part of the Hazardous
Materials Program Procedures, in 49
CFR 107.705, the approval process for
submitting applications includes mail,
email, or fax. Although not explicitly
stated, PHMSA also accepts
applications for approvals submitted
through the PHMSA portal.7 PHMSA
proposes to amend 49 CFR 107.705 to
add the PHMSA portal to the current
options to submit all types of approval
applications, and to specify that use of
the PHMSA portal will be the only
option to submit explosives approval
applications and to self-certify
manufacture of low hazard fireworks.
To be clear, PHMSA proposes that from
the effective date of a published final
rule, persons will no longer be able to
submit explosives approval applications
by mail, email, or fax and must use the
PHMSA portal. PHMSA believes
efficiencies will be gained by moving to
an electronic only service. The PHMSA
portal provides the public online access
to PHMSA services, creating a single
source for Hazardous Materials and
Pipeline Safety applications and data.
Persons need only to register to create
an account to access and use the portal.
Further discussion is provided in
‘‘Section II.C.’’
Furthermore, 49 CFR 107.713
describes the process for the
modification, suspension, and
termination of approvals. As currently
prescribed in 49 CFR 107.713(c), before
an approval is modified, suspended, or
7 The PHMSA portal is available online at https://
portal.phmsa.dot.gov/phmsapub/faces/
PHMSAHome;PHMSAPUB_SESSIONID=aHhG4dI
f1U0E2nq599uvQ-RWl3nzKlgWsLSOcwxPNzx
1te7cDD3R!883673165?req=-37101577
19365173927&attempt=0&_afrLoop=16868275
84595767&_afrWindowMode=0&_
afrWindowId=null&_adf.ctrl-state=ns6jrdcpu_1.
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terminated, PHMSA must provide
approval holders an opportunity to
show cause why the proposed action
should not be taken. PHMSA proposes
to add a new paragraph (e) to allow
approval holders to request termination
of approvals, and to revise paragraph (c)
to clarify that when an approval holder
voluntarily seeks to terminate an
approval, PHMSA is not required to
issue a show cause letter.
II. Incorporation by Reference
Discussion Under 1 CFR Part 51
According to the Office of
Management and Budget (OMB),
Circular A–119, ‘‘Federal Participation
in the Development and Use of
Voluntary Consensus Standards and in
Conformity Assessment Activities,’’
government agencies must use
voluntary consensus standards
wherever practical in the development
of regulations.
PHMSA currently incorporates by
reference into the HMR all or parts of
numerous standards and specifications
developed and published by standard
development organizations (SDO). In
general, SDOs update and revise their
published standards every two to five
years to reflect modern technology and
best technical practices. The National
Technology Transfer and Advancement
Act of 1995 (NTTAA; Pub. L. 104–113)
directs Federal agencies to use
standards developed by voluntary
consensus standards bodies in lieu of
government-written standards whenever
possible. Voluntary consensus standards
bodies develop, establish, or coordinate
technical standards using agreed-upon
procedures. OMB issued Circular A–119
to implement section 12(d) of the
NTTAA relative to the utilization of
consensus technical standards by
Federal agencies. This circular provides
guidance for agencies participating in
voluntary consensus standards bodies
and describes procedures for satisfying
the reporting requirements in the
NTTAA. Accordingly, PHMSA is
responsible for determining which
standards currently referenced in the
HMR should be updated, revised, or
removed, and which standards should
be added to the HMR. Revisions to
materials incorporated by reference in
the HMR are handled via the
rulemaking process, which allows for
the public and regulated entities to
provide input. During the rulemaking
process, PHMSA must also obtain
approval from the Office of the Federal
Register to incorporate by reference any
new materials. The Office of the Federal
Register issued a rulemaking 8 that
8 79
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FR 66278 (Nov. 7, 2014).
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revised 1 CFR 51.5 to require that an
agency detail in the preamble of an
NPRM the ways the materials it
proposes to incorporate by reference are
reasonably available to interested
parties, or how the agency worked to
make those materials reasonably
available to interested parties.
The following standards appear in the
regulatory text of this NPRM and have
already been approved for the locations
in which they appear: (1) APA 87–1A:
Standard for the Construction,
Classification, Approval and
Transportation of Consumer Fireworks;
(2) APA 87–1B: Standard for the
Construction, Classification, Approval,
and Transportation of Display
Fireworks; and (3) APA 87–1C:
Standard for the Construction,
Classification, Approval, and
Transportation of Entertainment
Industry and Technical Pyrotechnics.
No changes to these standards are
proposed in this NPRM.
III. Proposed Amendments
To streamline procedural
requirements for fireworks
manufacturers and shippers, PHMSA
proposes changes to the regulations
relating to PHMSA’s explosives
approval program specific to fireworks.
PHMSA also proposes changes to the
HMR to address classification and
packaging inconsistencies for tracer
ammunition. PHMSA will continue to
use the current approval process for
Division 1.4G consumer fireworks in
accordance with requirements specified
in §§ 173.56(b), (f), or (i), and 173.65.
However, instead of the current
approval process, PHMSA proposes to
permit manufacturers to self-certify
classification of certain ground and
novelty device fireworks using the
PHMSA portal, as discussed previously
and further below. Furthermore,
PHMSA proposes to revise the selfclassification of inert projectile
cartridges in § 173.56(h) to include
tracer ammunition; amend 49 CFR
107.705 to require use of the PHMSA
portal as the only submittal option for
explosives approval applications; and
amend 49 CFR 107.713 to clarify that an
approval holder may voluntarily
terminate an approval and that a show
cause letter from PHMSA is unnecessary
when approval holders request to
terminate approvals voluntarily.
In the PRIA supporting this
rulemaking, PHMSA determined that
the aggregate benefits of the
amendments proposed justify their
aggregate costs. If adopted in a final
rule, the amendments proposed herein
are expected to reduce the paperwork
burden on the regulated community and
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PHMSA personnel since fewer paperbased explosives approval applications
will be submitted and processed. The
overall net benefits include a cost
savings of 425 labor hours annually. See
the PRIA for additional information.
These cost savings will not have a
material effect on the safety impact of
PHMSA’s explosives approval program.
A. Establishing Exceptions for Ground
and Novelty Device Fireworks
PHMSA proposes to revise § 173.64 to
outline the exceptions for ground and
novelty device fireworks. Specifically,
for certain low hazard fireworks of these
types, the section would authorize
exception from the standard explosive
device approval process for
classification of Division 1.4G fireworks.
These exceptions would be
implemented by establishing an
automated process within the PHMSA
portal for self-certification, review of the
information provided, and issuance of a
certificate with a unique identification
(i.e., FW number). This process may be
used for the ground and novelty devices
identified in this rulemaking in lieu of
the current explosive approval process.
PHMSA personnel would no longer be
required to conduct a time-consuming
review of each application. The
automated review process will require
the same information as currently
required by the HMR. However, the
diagram of the device and chemical
formulation sheets will not require
firsthand review by PHMSA personnel
when compliance is certified by the
applicant. PHMSA believes this
proposed change is consistent with our
Agency mission to protect the health
and safety of the public and the
environment, and consistent with
Executive Order 12866 9 that in part
calls for agencies to examine existing
regulations and identify and assess
available alternatives to direct
regulation. In this case, the current
regulations to ensure the safe transport
of explosives require explosives—such
as fireworks—to be examined, classed,
and approved by PHMSA; and further
that certain fireworks manufactured
according to APA 87–1A may be
certified for transportation by a DOTapproved FCA instead. PHMSA believes
that upon examination of the existing
regulation and in consideration of the
low safety hazard associated with
certain ground and novelty devices, this
proposal to streamline the process
authorizing their manufacture and
transport by self-certification benefits
the public. PHMSA proposes that selfcertification will introduce efficiencies
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and maintain the safety of transporting
these fireworks under the HMR. To
correspond to the changes proposed in
this NPRM, PHMSA proposes to add a
definition for ‘‘low hazard firework’’ to
§ 173.59.
Ground Devices
PHMSA proposes that ground device
fireworks certified using the PHMSA
portal as conforming to the
construction, formulation, and
packaging requirements in revised
§ 173.64, will be authorized for
transport as ‘‘UN0336, Fireworks, 1.4G.’’
Seventeen ground devices will be
eligible for this new certification
process: Chaser, Crackling Ball,
Crackling Strip, Crackling Tube,
Firecracker, Flasher/Strobe, Flitter
Sparkler, Fountain Cone, Fountain
Cylindrical, Fountain Nitrocellulose,
Ground Spinner, Illuminating Torch,
Smoke, Snake, Specialty Device, Wheel,
and Wire Sparkler or Dipped Stick.
Multi-tube devices,10 such as cake and
combination devices, are excluded from
eligibility for certification using the
automated process.
PHMSA proposes specific criteria for
manufacturing (construction and
formulation) and packaging of these
ground devices. The fireworks would be
subject to both general and specific
requirements as presented below in the
table of Proposed Criteria for Ground
Devices. The proposed general
requirements for ground devices are as
follows:
• Devices must use chemicals in
conformance with the permitted and
restricted chemical table in the edition
of APA Standard 87–1A, Appendix 1,
incorporated by reference in § 173.64.
The 2018 edition of the standard is
currently incorporated by reference.
Note that all chemical specifications in
the table are maximum limits.
• All reports are limited to 50 mg
(0.050 g) of composition per report.
• All devices are initiated by a safety
fuse with the exception of firecrackers,
flitter sparklers, nitrocellulose
fountains, snakes, wire sparklers, or
dipped sticks.
• All devices must be finished (they
cannot be a component intended to be
used in another device).
• All devices must successfully pass
a thermal stability test as specified in
§ 173.64(a)(2).
• Each device must be marked with
the alphanumeric PHMSA-assigned
certification number (‘‘FW number’’)
consisting of the letters FW, followed by
10 Multi-tube devices are devices with more than
one tube that contains fireworks (i.e., pyrotechnic
effects).
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the year and month issued, and a
sequential number based on order of
issuance that year (e.g.,
FWYYYYMMSSSS). If the device is too
small, the package that contains the
device must display the certification
number.
The specific requirements for each of
the 17 eligible ground device types are
as follows:
PROPOSED CRITERIA FOR GROUND DEVICES
Device
Definition
Specification 11
Chaser ...........................................
Consists of a paper or cardboard
tube, which vents out the fuse
end of the tube.
Consists of a spherical ball that
contains small granules of
chemical composition that upon
ignition produce sparks and/or
a crackling effect.
Consists of small granules of
chemical composition adhered
to and encased in a paper or
cardboard wrapping that upon
ignition produce sparks and/or
a crackling effect.
Consists of a tube that contains
small granules of chemical
composition that upon ignition
produce sparks and/or a crackling effect.
Consists of a small paperwrapped or cardboard tube that
produces a single report.
20 total grams of chemical composition, with multiple reports
permitted.
20 total grams of chemical composition, with no reports permitted.
None.
20 total grams of chemical composition, with no reports permitted.
Inner packaging cannot exceed
72 grams of composition.
20 total grams of chemical composition, with no reports permitted.
Inner packaging cannot exceed
72 grams of composition.
50 milligrams of chemical composition per firecracker.
Consists of a paper-wrapped or
cardboard tube that produces a
crackling/flashing/strobing light
effect.
Consists of a paper or cardboard
tube attached to a stick or wire.
Upon ignition, the device produces a shower of sparks, a
colored flame and/or a crackling
effect.
5 total grams of chemical composition, with no reports permitted.
Multiple firecrackers can be fused
together to form a string. There
is no limit on number of firecrackers in a string.
Inner packaging cannot exceed
60 grams of composition.
Crackling Ball .................................
Crackling Strip ...............................
Crackling Tube ...............................
Firecracker .....................................
Flasher/Strobe ...............................
Flitter Sparkler ...............................
Fountain (Cone) .............................
Fountain (Cylindrical) .....................
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Fountain (Nitrocellulose) ................
Ground Spinner .............................
Illuminating Torch ..........................
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Consists of a conical paper or
cardboard container that upon
ignition produces a shower consisting of any combination of
colored sparks, color flame,
crackle, smoke, whistle and/or
micro star effects.
Consists of a paper or cardboard
tube that upon ignition produces a shower consisting of
any combination of colored
sparks, color flame, crackle,
smoke, and whistle or micro
star effects.
Consists of a paper or cardboard
cone or tube device that produces a shower of small
sparks, color, and flame as its
primary effect using nitrocellulose as the major chemical
component.
Consists of a paper or cardboard
tube that upon ignition emits a
shower of colored sparks that
vents out of an orifice, causing
the device to spin rapidly on the
ground.
Consists of a paper or cardboard
tube that upon ignition, emits a
colored flame with or without
crackles or sparks.
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Special conditions
Inner packaging cannot exceed
72 grams of composition.
25 total grams of chemical composition, with no reports permitted..
Formulations containing chlorates
are limited to 4 grams with no
more than 15 percent of the formulations being chlorates.
50 total grams of chemical composition, with no reports permitted.
None.
100 total grams of chemical composition, with no reports permitted.
None.
15 total grams of chemical composition, with no reports permitted.
None.
20 total grams of chemical composition, with reports permitted.
Multiple ground spinners can be
fused together to form a string.
Strings are limited to 20 grams
of total composition.
100 total grams of chemical composition, with no reports permitted.
None.
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None.
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PROPOSED CRITERIA FOR GROUND DEVICES—Continued
Device
Definition
Specification 11
Special conditions
Smoke ............................................
Consists of a paper or cardboard
tube that upon ignition, emits
smoke as the primary effect.
Multiple smoke devices can be
fused together to form a string.
Strings are limited to 100 grams
of total composition.
Snake .............................................
Consists of pressed pellet of pyrotechnic composition that upon
ignition, produces a snake-like
ash that expands in length as
the composition is consumed.
Specialty Device ............................
Consists of a paper or cardboard
tube(s), e.g., in the shape of an
animal or a small vehicle, that
produces multiple effects.
Consists of a paper or cardboard
tube placed on the ground or
attached to a post, by means of
a nail, spike, or string. Upon ignition, the wheel rotates producing a shower of sparks,
color, crackling, flame, or whistle effects.
100 total grams of chemical composition. All mixtures containing
a chlorate must contain an
equal
amount
or
greater
amount of a carbonate or bicarbonate.
20 total grams of chemical composition, with no reports.
Only formulations of nitrated asphalt,
asphaltum,
bitumen,
pitch, and/or tar with an oxidizer
(with or without a binder) are
permitted.
20 total grams of chemical composition, with reports permitted.
Wheel .............................................
khammond on DSKJM1Z7X2PROD with PROPOSALS
Wire Sparkler or Dipped Stick .......
Consists of a metal wire or wood
dowel coated with a chemical
composition. Upon ignition, the
device produces a shower of
sparks, a colored flame, and/or
a crackling effect.
Currently, manufacturers may submit
low hazard fireworks approvals through
the PHMSA portal, email, or mail,
although all applications in the past
several years have been through the
PHMSA portal. A manufacturer follows
a multi-step process to receive a
certificate using PHMSA’s automated
process for review of low hazard
fireworks. First, the applicant must
register with PHMSA to create an
account to use the PHMSA portal and
provide the following contact
information: company name, contact
person, title, address, phone, and email
address; manufacturing location; and
U.S. agent (if applicable), address,
phone, and email Address. A unique
profile is created for each applicant
based on their email address, which
allows repeated access. If already
registered with the PHMSA portal,
persons must ensure all necessary
information is provided to allow for
self-certification. Applicants are
required to create complex passwords in
accordance with DOT’s password
requirements.
11 This column describes the chemical
composition weight limits per tube and whether
reports are permitted.
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200 total grams of chemical composition, with no reports.
No tube can contain more than 60
total grams of composition,
which includes a 20 gram propellant limit per tube.
Tubes cannot contain aerial components.
Handles are not permitted.
100 total grams of chemical composition, with no reports permitted.
Formulations containing chlorates
are limited to four grams with
no more than 15 percent of the
formulations being chlorates.
Then, the applicant must provide
specific information about a device and
certify the construction, chemical
composition, and packaging are in
accordance with the HMR. This step
requires the applicant to respond to the
following questions:
• What is the name and/or product
code of the device? (Must be unique.)
• What is the category of the ground
device? (There will be a drop down
menu with the 17 authorized ground
devices.)
• What is the maximum weight in
grams of chemical composition in the
device?
• Does the device contain a report?
(List how many reports.)
• What is the maximum weight in
milligrams of any single report in the
device?
• What is the total report weight in
milligrams in the device?
• Did the device pass a thermal
stability test?
• Does the device comply with the
Permitted and Restricted Chemicals
Table found in the APA Standard 87–
1A, Appendix 1, currently incorporated
by reference in § 173.64?
• Does the device use a safety fuse for
ignition?
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None.
No tube can contain more than 2
grams of composition; tubes
cannot contain aerial components or internal shells.
None.
Inner packaging cannot exceed
120 grams of composition.
• Does the device meet one of the
descriptions listed in § 173.64?
• Do you certify the device will be
manufactured and transported in
accordance with all the statements you
attested to above?
Finally, the chemical composition
and diagram of the ground device must
be entered into and uploaded to the
PHMSA portal. A certificate will be
issued for each device following the
successful completion of the process.
The certificate will contain the unique
alphanumeric certification number
described above.
Novelty Devices
Similarly, PHMSA proposes that
novelty devices (i.e., novelties) certified
using the PHMSA portal as conforming
to the construction, formulation, and
packaging requirements in revised
§ 173.64 will be authorized for transport
and not subject to further regulation
except for air transport. Although these
novelty devices are considered Division
1.4 fireworks, consistent with the
guidance discussed in Section I.A and
as a condition for self-certification,
novelty devices will be classed for
transport as ‘‘UN3178, Flammable solid,
inorganic, n.o.s. (Novelties), 4.1, PG II,’’
when transported internationally or by
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air. Seven novelties will be eligible for
this new certification process: Booby
Trap/Pull Apart, Novelty Flitter
Sparkler, Party Popper, Novelty Snake,
Snapper, Novelty Wire Sparkler or
Novelty Dipped Stick, and Novelty
Smoke Device. Therefore, manufacturers
may receive a certification for
international transportation when it is
required. Consistent with the 2015
guidance document, PHMSA considers
certain novelties—identified in this
NPRM as excepted from further
regulation—as explosives under the
HMR, subject to certain transportation
conditions. However, PHMSA
acknowledges that this exception is
unique to the United States and
complicates transportation of these
fireworks into or out of the United
States. Therefore, to facilitate
international transportation of novelties,
PHMSA proposes to issue a unique
identifier number (FW number) as part
of the automated self-certification
process. This process facilitates the
certification process and movement of
novelty devices outside of the United
States where they are classified the
same way but not offered the same
exceptions.
Novelties must comply with both the
general and specific requirements for
manufacture and packaging as provided
in the table of Proposed Criteria for
Novelties. The proposed general
requirements for novelty devices are as
follows:
• Devices that do not list specific
chemical restrictions must use
chemicals in conformance with the
permitted and restricted chemical table
in the APA Standard 87–1A, Appendix
1, incorporated by reference in § 173.64.
The 2018 edition is currently
incorporated by reference. Note that all
chemical specifications in the table are
maximum limits.
• No reports are permitted in
novelties.
• Smoke devices must be initiated by
a fuse.
• Devices must be finished and
packaged in the inner packagings.
• All novelties must successfully pass
a thermal stability test specified in
§ 173.64(a)(2).
• Each device must be marked with
the alphanumeric PHMSA-assigned
certification number (FW number),
followed by the year and month issued,
and a sequential number based on order
of issuance that year (e.g.,
FWYYYYMMSSSS). If the device is too
small, the package that contains the
device must display the certification
number.
The specific requirements for each of
the seven novelty types is as follows:
PROPOSED CRITERIA FOR NOVELTIES
Novelty
Definition
Specifications
Special conditions
Booby Trap/Pull Apart ....................
Device that is actuated by means
of friction. Pulling a string or
strings apart activates the device, producing a noise effect.
Inner packages must not contain
more than 12 devices.
Novelty Flitter Sparkler ..................
Consists of a paper or cardboard
tube attached to a stick or wire.
Upon ignition, the device produces a shower of sparks, a
colored flame, and/or a crackling effect.
Device that is actuated by means
of friction. Pulling a string or
trigger activates the device,
producing a noise effect and releasing paper streamers or confetti. Common examples resemble champagne bottles and toy
pistols.
Consists of pressed pellet of pyrotechnic composition that upon
ignition, produce a snake-like
ash that expands in length as
the composition is consumed.
0.016 total grams of chemical
composition, which is limited to
barium, potassium, and/or sodium chlorate with red phosphorus.
5 total grams of chemical composition, with no reports permitted. Formulations containing
chlorates are limited to 4 grams
with no more than 15 percent of
the formulation being chlorates.
0.016 total grams of chemical
composition, which is limited to
barium, potassium, and/or sodium chlorate with red phosphorus.
2 total grams of chemical composition. Only formulations of
nitrated asphalt, asphaltum, bitumen, pitch, and/or tar with an
oxidizer (with or without a binder) are permitted.
0.001 total grams of silver fulminate coated on small bits of
sand or gravel.
Inner packaging must not contain
more than 25 devices
Party Poppers ................................
Novelty Snakes and Glow-Worms
Snappers ........................................
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Novelty Wire Sparkler or Novelty
Dipped Stick.
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Consists of small, paper-wrapped
items. When dropped, the device activates, producing a
noise effect.
Consists of a metal wire or wood
dowel coated with a chemical
composition. Upon ignition, the
device produces a shower of
sparks, a colored flame, and/or
a crackling effect.
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25 total grams of chemical composition, with no reports permitted. Formulations containing
perchlorates are limited to 5
grams. Formulations containing
chlorates are limited to 4 grams
with no more than 15 percent of
the formulations being chlorates.
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Inner packages must not contain
more than 8 devices, and an ignition fuse is permitted.
Inner packages must not contain
more than 72 devices.
Inner packages must not contain
more than 50 devices with sawdust or other impact absorbing
materials.
Inner packages must not contain
more than 8 devices.
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PROPOSED CRITERIA FOR NOVELTIES—Continued
Novelty
Definition
Specifications
Special conditions
Novelty Smoke Device ...................
Consists of a paper or cardboard
tube that upon ignition, emits
smoke as the only effect.
5 total grams of chemical composition, with no reports permitted. All mixtures containing a
chlorate must contain an equal
amount or greater amount of a
carbonate or bicarbonate (e.g.
calcium carbonate, sodium bicarbonate).
Inner packages must not contain
more than 72 devices.
Novelties must be in inner packagings
that must be further packed in strong
outer packagings. The packages must
conform to the requirements of § 173.24.
The maximum gross weight of a
completed package may not exceed 30
kilograms (66 pounds). Additionally,
each outer package, and an overpack if
used, must be plainly marked with
‘‘NOVELTIES, IN CONFORMANCE
WITH § 173.64, NOT REGULATED,
EXCEPT WHEN TRANSPORTED BY
AIR.’’ When novelties are transported by
air, they must be classed and described
as ‘‘UN3178, Flammable solid,
inorganic, n.o.s. (Novelties), 4.1, PG II,’’
and packaged for transport accordingly.
Similar to ground devices, an
applicant will follow a multi-step
process to self-certify using PHMSA’s
automated process for review of low
hazard fireworks. First, the applicant
must register with PHMSA to create an
account for use of the PHMSA portal
and provide the following contact
information: company name, contact
person, title, address, phone, and email
address; manufacturing location; and
U.S. agent (if applicable), address,
phone, and email address. A unique
profile is created for each applicant
based on their email address, which
allows repeated access. If already
registered with the PHMSA portal,
persons must ensure all necessary
information is provided to allow selfcertification. Applicants are required to
create complex passwords in
accordance with DOT’s password
requirements.
Then, the applicant must provide the
specific information about a novelty and
certify that the construction, chemical
composition, and packaging are in
accordance with the HMR. This step
requires the applicant to respond to the
following questions:
• What is the name and/or product
code of the device? (Must be unique.)
• What is the category of the novelty?
(There will be a drop-down menu with
the seven authorized novelties.)
• What is the maximum weight in
grams of chemical composition in the
device?
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Jkt 262001
• Did the device pass the thermal
stability test described in 49 CFR
173.64(a)(2)?
• Does the device comply with the
Permitted and Restricted Chemicals
Table found in the APA Standard 87–
1A, Appendix 1, currently incorporated
by reference in § 173.64?
• Does the novelty comply with the
specific restrictions listed in the Table
of Authorized Novelty Devices and
Specifications?
• Does the device use a safety fuse for
ignition?
• Does the novelty meet a device
description listed in § 173.64?
• Do you certify the device will be
manufactured and transported in
accordance with all the statements
attested to above?
Finally, the chemical composition
and diagram must be entered into and
uploaded to the PHMSA portal. A
certificate will then be issued for each
novelty following the successful
completion of the process. The
certificate will contain the unique
alphanumeric certification number
described above. The certificate will
indicate the description and
classification of the device as ‘‘UN3178,
Flammable solid, inorganic, n.o.s.
(Novelties), 4.1, PG II’’ for international
transportation and domestic air
transportation, and that it is not
regulated as a Class 1 explosive when
transported domestically by vessel,
highway, or rail.
Fireworks Identification Scheme
As a baseline, fireworks must be
approved and assigned an explosives
approval number by PHMSA (EX
number) based on actual testing and
classification prior to transportation to,
from, and within the United States.
However, § 173.64 permits Division
1.3G and 1.4G fireworks to be approved
without prior examination based on
certain conditions, including
compliance with the provisions of the
2018 APA Standards 87–1A, 1B, and 1C,
which are incorporated by reference in
§ 171.7. Further, § 173.65 permits—in
lieu of an approval—Division 1.4G
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Sfmt 4702
consumer fireworks (as defined in
§ 171.8) to be certified by a DOTapproved FCA. After the FCA reviews
the consumer fireworks application and
certifies it meets the requirements, the
FCA assigns an FC number.
However, in this NPRM, PHMSA is
proposing to streamline the process for
approval or certification of low hazard
fireworks by allowing self-certification
using an online application in the
PHMSA portal with an automated
process for review and issuance of a
certification. This automated process
may be used for the low hazard
fireworks identified in this rulemaking
in lieu of the current process and would
no longer require PHMSA or FCA
personnel to conduct time-consuming
reviews of each application or impose a
cost on manufacturers who opt to use an
FCA to certify these fireworks.
Manufacturers of fireworks that meet
the required criteria for the
construction, formulation, and
packaging of these low hazard
fireworks—specifically discussed in
Section II. Proposed Amendments—
would certify compliance with specified
conditions and limitations online and
receive a certificate with a unique
identifier number (FW number) for each
firework type. The FW number will
identify a low hazard firework that has
been certified through the newly
proposed automated approval process as
specified in § 173.64. An example of an
FW number would be ‘‘FW2023100001’’
consisting of the letters FW, followed by
the year and month issued, and a
sequential number based on order of
issuance that year.
Given the long history and wide
recognition of the EX and FC numbering
scheme, PHMSA seeks specific
comments on the supply chain
implications, the economic impact and
safety concerns associated with the
proposed FW numbering system, as well
as comments on how to implement the
changes if they are adopted. For
example, will the use of different alpha
designators (i.e., EX, FC and FW) pose
complications or confusion within the
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transportation system? If so, please
provide a suggested alternative to FW.
khammond on DSKJM1Z7X2PROD with PROPOSALS
B. Authorizing the Self-Classification of
Tracer Ammunition
Section 173.56(h) authorizes selfclassification of certain types of small
arms cartridges into Division 1.4S,
provided certain conditions are met. In
particular, § 173.56(h)(3) authorizes
ammunition with inert projectile or
blank ammunition. Tracer ammunition
utilizes a small amount of pyrotechnic
composition to provide visible light
upon exit from a gun barrel. Due to the
presence of the pyrotechnic
composition, it is unclear whether tracer
ammunition would qualify as an ‘‘inert’’
projectile. However, there is a negligible
quantity of pyrotechnic composition in
tracer ammunition compared to the
quantities of pyrotechnic material
contained within the projectile itself,
and its presence neither increases the
hazard in a bonfire test nor makes
unintentional initiation any more likely.
The difference in hazard between
inert projectile cartridges and the same
cartridges with a small amount of
pyrotechnic composition is negligible.
Furthermore, there are no additional
concerns related to tracer ammunition
that justify exclusion from the selfclassification provision of
§ 173.56(h)(3). Therefore, PHMSA
proposes to amend § 173.56(h)(3) to also
authorize self-classification of tracer
ammunition that meets all other criteria
outlined in § 173.56(h)(3).
C. Amending the Approvals Process
PHMSA currently provides several
options for submittal of applications for
approvals including mail, email, fax,
and the PHMSA portal, although this
latter method is not codified as an
option. As such, PHMSA proposes to
amend 49 CFR 107.705 to include the
PHMSA portal as a submittal option for
all approvals. Furthermore, PHMSA
proposes to make the PHMSA portal the
only method for submittal and
acceptance of explosives approval
applications, and to remove current
options to submit those applications via
mail, email, or fax. Transitioning to an
all-electronic system will improve
efficiency. Delays often occur when
PHMSA personnel must transcribe
application information into the portal
database due to incomplete data,
inability to read handwritten materials,
and so forth. Where missing data or
uncertainties are discovered, PHMSA
personnel must follow up with the
applicant or otherwise reject an
application, which causes further
delays. Electronic submissions will
improve efficiency for the applicant on
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Jkt 262001
the front end (data entry) and for
PHMSA on the back end (review and
issuance of approval). The PHMSA
portal provides online access to PHMSA
services, creating a single source for all
Hazardous Materials explosives
applications and data. Persons need
only to register to create an account and
access the portal.
Finally, PHMSA proposes to add a
new paragraph 49 CFR 107.705(e) to
allow approval holders to request
termination of approvals, and to amend
49 CFR 107.713(c) to clarify that when
an approval holder voluntarily requests
termination, PHMSA is not required to
issue a show cause letter.
IV. Section-by-Section Review
The following is a section-by-section
review of the proposed amendments to
the HMR.
Part 107
Section 107.705
Section 107.705 prescribes the
requirements for submitting
registrations, reports, and applications
for approval. PHMSA proposes revising
paragraph (a)(1) to specify the PHMSA
portal may also be used to file all
approval applications with PHMSA and
is the only authorized method for
submitting explosives approval
applications, and proposes removing
options to submit those explosives
applications via mail, email, or fax for
all explosives approvals.
Section 107.713
Section 107.713 prescribes procedures
for the issuance, modification, and
termination of approvals required by the
HMR. PHMSA proposes to revise 49
CFR 107.713(c) introductory text to
indicate a PHMSA show cause letter is
not necessary for voluntary termination
of an approval; and add a new
paragraph (e) to clarify approval holders
may voluntarily request termination of
an approval. PHMSA will then issue a
termination letter, rather than a show
cause letter.
Part 171
Section 171.8
Section 171.8 provides definitions
and abbreviations. PHMSA proposes to
define the term ‘‘FW number’’ as a
number preceded by the prefix ‘‘FW,’’
assigned by PHMSA to a Division 1.4G
Consumer firework device that has been
certified under the provisions of
§ 173.64.
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Part 173
Section 173.56
Section 173.56 prescribes the
procedures for classification and
approval of new explosives. Small arms
cartridges meeting the criteria in
paragraph (h) may be self-classified as
Division 1.4S by the manufacturer.
PHMSA proposes to modify
§ 173.56(h)(3) to provide clarity that
tracer ammunition with inert projectiles
is also eligible for self-classification as
a Division 1.4S material provided all
other criteria outlined in § 173.56(h) are
met. This proposal will maintain the
current level of safety with the HMR by
ensuring proper understanding of what
types of explosives may be classified or
self-classified.
Section 173.59
Section 173.59 provides informational
descriptions of terms for explosives.
PHMSA is adding a separate term and
description for ‘‘low hazard fireworks.’’
This proposal will maintain the current
level of safety with the HMR by
ensuring proper understanding of what
explosives may qualify for the low
hazard fireworks exceptions.
Section 173.64
Section 173.64 prescribes
classification and approval exceptions
from the standard explosives approval
process for Division 1.3 and 1.4
fireworks. PHMSA proposes to revise
§ 173.64 to include further exceptions
for low hazard consumer fireworks that
qualify for self-certification.
Specifically, paragraph (b) will outline
criteria for self-certification of certain
ground and novelty devices as Division
1.4 fireworks. Seven novelties will be
eligible for self-certification and
exception from the HMR, and 17 ground
devices will be eligible for selfcertification and classification as
Division 1.4G fireworks. PHMSA also
proposes to make some editorial
changes to paragraph (a) consistent with
revision to paragraph (b), such as adding
a title to paragraph (a) and clarifying
further the reference to § 173.65 for
certification of Division 1.4G consumer
fireworks by an FCA. This proposal will
maintain the current level of safety with
the HMR by ensuring proper
understanding of which ground and
novelty devices may qualify for this
exception.
V. Regulatory Analyses and Notices
A. Statutory/Legal Authority
This NPRM is published under the
authority of Federal Hazardous
Materials Transportation Act (HMTA;
49 U.S.C. 5101–5127). Section 5103(b)
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of the HMTA authorizes the Secretary of
Transportation to prescribe regulations
for the safe transportation of hazardous
materials (HAZMAT) in intrastate,
interstate, and foreign commerce. The
Secretary has delegated the authority
granted in the HMTA to the PHMSA
Administrator at 49 CFR 1.97(b).
B. Executive Orders 12866 and 14094;
DOT Regulatory Policies and Procedures
Executive Order 12866 (‘‘Regulatory
Planning and Review’’), as amended by
Executive Order 14094 (‘‘Modernizing
Regulatory Review’’ 12), requires
agencies to regulate in the ‘‘most costeffective manner,’’ to make a ‘‘reasoned
determination that the benefits of the
intended regulation justify its costs,’’
and to develop regulations that ‘‘impose
the least burden on society.’’ Similarly,
DOT Order 2100.6A (‘‘Policies and
Procedures for Rulemakings’’) requires
PHMSA rulemaking actions include ‘‘an
assessment of the potential benefits,
costs, and other important impacts of
the regulatory action,’’ and (to the extent
practicable) the benefits, costs, and any
significant distributional impacts,
including any environmental impacts.
Executive Order 12866 and DOT
Order 2100.6A require PHMSA submit
‘‘significant regulatory actions’’ to the
Office of Management and Budget
(OMB) for review. This rulemaking is
not considered a significant regulatory
action under section 3(f) of Executive
Order 12866 (as amended by Executive
Order 14094) and therefore, was not
formally reviewed by OMB. This
rulemaking is also not considered a
significant rule under DOT Order
2100.6A.
The following is a brief summary of
costs, savings, and net benefits of some
of the amendments proposed in this
notice. PHMSA has developed a more
detailed analysis of these costs and
benefits in the PRIA, a copy of which
has been placed in the docket. PHMSA
seeks public comment on its proposed
revisions to the HMR, and the
preliminary cost and benefit analyses in
the PRIA.
PHMSA estimates the costs associated
with permitting self-certification of lowhazard fireworks are minimal. The
actual standards required by the HMR
for low-hazard fireworks are not affected
by this rule change, merely allowing
manufacturers to self-certify that the
products meet those standards. PHMSA
estimates the self-certifying application
process for manufacturers will not add
any additional time burdens as the
approval information required for an
approval will not be affected. PHMSA
estimates approvals handled by PHMSA
take approximately two hours per
application. Of that time 30 minutes are
required for data entry, 60 minutes for
managerial review, and another 30
minutes for signature review and
approval. Allowing self-classification,
therefore, would save PHMSA 425 labor
hours annually.
PHMSA emphasizes the proposed
amendment for tracer ammunition is
merely a formal codification and
adoption of a policy in place since 2002.
The proposed change would make the
policy’s definition into a formal
regulation. Considering the longstanding nature of the 2002 policy, there
would be minimal burdens to formally
adopting the policy into the HMR.
C. Executive Order 13132
PHMSA analyzed this rulemaking in
accordance with the principles and
criteria contained in Executive Order
13132 (Federalism) 13 and the
Presidential Memorandum
(Preemption).14 Executive Order 13132
requires agencies to assure meaningful
and timely input by state and local
officials in developing regulatory
policies that may have ‘‘substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.’’
The proposed rule would not have
substantial direct effects on the States,
the relationship between the national
government and the States, or the
distribution of power and
responsibilities among the various
levels of government. The HMTA
contains an express preemption
provision at 49 U.S.C. 5125(a) that
preempts State, local, and Tribal
requirements if: (1) compliance with
such requirement makes compliance
with the DOT regulations issued under
the authority of the HMTA not possible;
or (2) compliance with such
requirement is an obstacle to carrying
out a regulation prescribed under the
authority of the HMTA. The HMTA also
contains an express preemption
provision at 49 U.S.C. 5125(b) that
preempts State, local, and Tribal
requirements on certain covered
subjects, unless the non-Federal
requirements are ‘‘substantively the
same’’ as the Federal requirements,
including the following subjects:
• The designation, description, and
classification of hazardous materials.
13 64
12 88
FR 21879 (Apr. 11, 2023).
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• The packing, repacking, handling,
labeling, marking, and placarding of
hazardous materials.
• The preparation, execution, and use
of shipping documents related to
hazardous materials and requirements
related to the number, contents, and
placement of those documents.
• The written notification, recording,
and reporting of the unintentional
release in transportation of hazardous
material.
• The design, manufacture,
fabrication, marking, maintenance,
recondition, repair, or testing of a
packaging or container represented,
marked, certified, or sold as qualified
for use in transporting hazardous
material.
This proposed rule addresses covered
subject items (1) and (2) and would
preempt state, local, and tribal
requirements not meeting the
‘‘substantively the same’’ standard. Any
preemption results directly from
operation of 49 U.S.C. 5125. In addition,
in this instance, the preemptive effect of
the proposed rule is limited to the
minimum level necessary to achieve the
objectives of the HMTA under which
the final rule is promulgated. Therefore,
the consultation and funding
requirements of Executive Order 13132
do not apply.
D. Executive Order 13175
PHMSA analyzed this rulemaking in
accordance with the principles and
criteria contained in Executive Order
13175 (‘‘Consultation and Coordination
with Indian Tribal Governments’’) 15
and DOT Order 5301.1A (‘‘Department
of Transportation Tribal Consultation
Policy and Procedures’’). Executive
Order 13175 and DOT Order 5301.1A
require DOT Operating Administrations
to assure meaningful and timely input
from Native American tribal government
representatives in developing rules that
significantly or uniquely affect tribal
communities by imposing ‘‘substantial
direct compliance costs’’ or ‘‘substantial
direct effects’’ on such communities, or
the relationship and distribution of
power between the Federal Government
and Native American Tribes.
PHMSA assessed the impact of the
rulemaking and determined that it
would not significantly or uniquely
affect Tribal communities or Native
American Tribal governments. The
changes to the hazardous materials
program procedures and HMR proposed
in this NPRM would have broad,
national scope. PHMSA does not expect
this rulemaking would significantly or
uniquely affect Tribal communities,
15 65
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impose substantial compliance costs on
Native American Tribal governments, or
mandate Tribal action. And because
PHMSA expects the rulemaking would
not adversely affect the safe
transportation of hazardous materials
generally, PHMSA does not expect it
would entail disproportionately high
adverse risks for tribal communities. For
these reasons, the funding and
consultation requirements of Executive
Order 13175 and DOT Order 5301.1A
apply. However, PHMSA solicits
comment from Native American tribal
governments and communities on
potential impacts of the proposed
rulemaking.
E. Regulatory Flexibility Act and
Executive Order 13272
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires agencies to
consider whether a rulemaking would
have a ‘‘significant economic impact on
a substantial number of small entities’’
to include small businesses; not-forprofit organizations that are
independently owned and operated and
are not dominant in their fields; and
governmental jurisdictions with
populations under 50,000. The
Regulatory Flexibility Act directs
agencies to establish exceptions and
differing compliance standards for small
businesses, where possible to do so and
still meet the objectives of applicable
regulatory statutes. Executive Order
13272 (‘‘Proper Consideration of Small
Entities in Agency Rulemaking’’) 16
requires agencies to establish
procedures and policies to promote
compliance with the Regulatory
Flexibility Act and to ‘‘thoroughly
review draft rules to assess and take
appropriate account of the potential
impact’’ of the rules on small
businesses, governmental jurisdictions,
and small organizations. The DOT posts
its implementing guidance on a
dedicated web page.17
This proposed rule has been
developed in accordance with Executive
Order 13272 and DOT’s procedures and
policies to promote compliance with the
Regulatory Flexibility Act to ensure that
potential impacts on small entities are
considered properly. As explained
above, this proposed rule facilitates the
transportation of hazardous materials by
streamlining the regulatory
requirements for energetics
manufacturers and shippers while
maintaining the current level of safety
for transportation of these items.
16 67
FR 53461 (Aug. 16, 2002).
‘‘Rulemaking Requirements Related to
Small Entities,’’ https://www.transportation.gov/
regulations/rulemaking-requirements-concerningsmall-entities (last accessed June 17, 2021).
17 DOT,
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Specifically, it proposes to amend the
classification and approval process of
certain low-hazard Class 1 explosive
materials (i.e., fireworks) and clarify
classification eligibility for ammunition
with inert projectile that has a
pyrotechnic coating (i.e., tracers).
Finally, this rulemaking proposes to
require use of the PHMSA portal, an
online application, as the sole method
to submit explosives approval
applications.
Therefore, PHMSA expects that these
amendments will not, if adopted, have
a significant economic impact on a
substantial number of small entities.
However, PHMSA solicits comments on
the anticipated economic impacts to
small entities.
F. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), no
person is required to respond to any
information collection unless it has
been approved by OMB and displays a
valid OMB control number. Pursuant to
44 U.S.C. 3506(c)(2)(B) and 5 CFR
1320.8(d), PHMSA must provide
interested members of the public and
affected agencies an opportunity to
comment on information and
recordkeeping requests.
PHMSA has analyzed this NPRM in
accordance with the Paperwork
Reduction Act. PHMSA currently
accounts for information collection and
recordkeeping burdens under OMB
Control Number 2137–0057 ‘‘Approvals
for Hazardous Materials.’’ In this NPRM,
PHMSA proposes to revise § 173.64
applicable to low hazard fireworks that
may impact the burden accounted for in
OMB Control Number 2137–0057. The
proposed addition in § 173.64 would
require manufacturers to provide
information in association with
pursuing allowance for the selfcertification of certain ground and
novelty device fireworks as low hazard
fireworks for purposes of transportation.
PHMSA analyzed this proposal and
expects the impact to be negligible as
the information is the same information
currently required by the HMR, just in
a different format.
PHMSA specifically requests
comments on the information collection
and recordkeeping burdens associated
with developing, implementing, and
maintaining these proposed
requirements. Address written
comments to the DOT Docket
Operations Office as identified in the
ADDRESSES section of this rulemaking.
Comments regarding information
collection burdens must be received
prior to the close of the comment period
identified in the DATES section of this
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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
202–395–674. Requests for a copy of
this information collection should be
directed to Steven Andrews, Standards
and Rulemaking Division (PHH–10),
Pipeline and Hazardous Materials Safety
Administration, 1200 New Jersey
Avenue SE, Washington, DC 20590–
0001. If these proposed requirements are
adopted in a final rule, PHMSA will
submit the revised information
collection and recordkeeping
requirements to OMB for approval.
G. Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995 (UMRA; 2 U.S.C. 1501 et seq.)
requires agencies to assess the effects of
Federal regulatory actions on State,
local, and Tribal Governments, and the
private sector. For any NPRM or final
rule that includes a Federal mandate
that may result in the expenditure by
State, local, or Tribal Governments, or
by the private sector of $100 million or
more in 1996 dollars in any given year,
the agency must prepare, amongst other
things, a written statement that
qualitatively and quantitatively assesses
the costs and benefits of the Federal
mandate.
As explained in the PRIA, available
for review in the docket, this proposed
rule does not impose unfunded
mandates under the UMRA. As
explained in the PRIA, it is not expected
to result in costs of $100 million or
more in 1996 dollars to either State,
local, or Tribal Governments, or to the
private sector in any one year.
Therefore, the analytical requirements
of UMRA do not apply.
H. Draft Environmental Assessment
The National Environmental Policy
Act of 1969 (NEPA), as amended (42
U.S.C. 4321–4335),18 requires Federal
agencies to consider the environmental
impacts of their actions in the decisionmaking process. The purpose and
function of NEPA is satisfied if Federal
agencies have considered relevant
environmental information, and the
public has been informed regarding the
decision-making process. Agencies must
prepare an environmental assessment
(EA) for a proposed action that is not
likely to have significant effects or when
significance is unknown, and prepare a
FONSI if, based on the EA, the agency
determines not to prepare an EIS
because the proposed action will not
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have significant effects. In accordance
with these requirements, an agency’s EA
must discuss: (1) the need for the action;
(2) the alternatives considered; (3) the
environmental impacts of the proposed
action and alternatives; and (4) a listing
of the agencies and persons consulted
before providing evidence for
determining a FONSI. The draft EA
(DEA) and proposed FONSI for the
proposed action in this rulemaking are
as follows. This DEA incorporates by
reference the analysis included in the
preamble text above.
1. Need for the Action
The changes in the explosives
approval process, especially for
classification and approval of low
hazard fireworks, are needed to improve
efficiency and provide regulatory
clarification for offerors and carriers.
2. Alternatives Considered
No Action Alternative
Under the no action alternative, the
current process for acquiring explosives
approvals by hardcopy or email
submission of application documents
would continue. Additionally,
stakeholders would continue to rely on
previously issued guidance for
classification and exception from
regulation for certain low hazards
fireworks. Finally, it would remain
ambiguous whether tracer ammunition
is eligible for self-classification as a
Division 1.4S explosive (i.e., the small
arms cartridges exceptions).
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Proposed Action Alternative—
Explosives Approval Program and
Exceptions for Divisions 1.3 and 1.4
Consumer Fireworks
Under this alternative, PHMSA would
implement the proposed amendments of
this rule as fully addressed in the
preamble and regulatory text sections of
this NPRM. However, a concise
summary of the proposed amendments
include the following:
(1) Establishing exceptions for ground
and novelty firework devices.
(2) Authorizing the self-classification
of tracer ammunition.
(3) Requiring electronic submittal of
explosives approval applications to
include reference to the PHMSA portal,
and to authorize electronic submittal for
all required approvals.
3. Environmental Impacts of Proposed
Action and Alternatives
No Action Alternative
PHMSA expects the no action
alternative to have no new impact on
the environment as the status quo
would remain in place. Explosives
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approval applications, including those
for fireworks, would continue to be
processed using all authorized filing
formats currently in place, and
manufacturers would continue to work
within the scope of guidance issued by
PHMSA for exceptions from regulation
for low hazard fireworks. Additionally,
classification of tracer ammunition as a
Division 1.4S would remain the same
but clarity on whether a manufacturer
could self-classify would remain
uncodified.
Proposed Action Alternative—
Explosives Approval Program and
Exceptions for Divisions 1.3 and 1.4
Consumer Fireworks
Under this alternative, PHMSA would
implement the proposed amendments of
this rule as fully addressed in the
preamble and regulatory text sections of
this NPRM. The proposed amended
regulatory text would allow for a
streamlining of procedural requirements
for the transportation of low hazard
ground and novelty firework devices.
Specifically, PHMSA would allow an
automated process within the PHMSA
portal for self-certification, review of the
information provided, and issuance of a
certificate with a unique identification
(i.e., FW number). This process would
eliminate the need for firsthand review
by PHMSA personnel when compliance
is certified by the applicant. The devices
would still be subject to the same
substantive testing and materials
requirements, including construction,
formulation, and packaging. Similarly,
this NPRM proposes to clarify and
codify existing guidance that selfcertification is authorized for inert
projectile cartridges coated with tracer
composition and may be self-classified
as a Division 1.4S material provided all
other criteria outlined in § 173.56(h) are
met. Although the proposal would
reduce the hours PHMSA personnel
spend reviewing documents, the
automated process is designed to
similarly ensure compliance.
Furthermore, PHMSA will maintain
oversight of the automated process for
low hazard fireworks through PHMSA’s
QA/QC review program.
PHMSA also notes the difficulty in
quantifying any environmental impact
of requiring electronic processing of
information; codifying approval and
exception requirements for low hazard
fireworks; and clarifying authorized
self-classification of tracer ammunition.
The changes proposed in this notice do
not impact whether or not explosives
are manufactured and transported, but
rather how explosives approval
applications are processed and how
certain explosives may be classified.
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The process is already occurring and the
changes proposed would primarily be
about transitioning to an electronic
format. For the above reasons, PHMSA
expects the proposed action alternative
to have no impact on the human
environment, including public safety.
4. Agencies and Persons Consulted
PHMSA coordinated with the Federal
Aviation Administration, the Federal
Motor Carrier Safety Administration, the
Federal Railroad Administration, and
the U.S. Coast Guard in the
development of this proposed rule.
5. Environmental Justice
Executive Order 12898 (‘‘Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations’’) 19 directs
Federal agencies to take appropriate and
necessary steps to identify and address
disproportionately high and adverse
effects of Federal actions on the health
or environment of minority and lowincome populations to the greatest
extent practicable and permitted by law.
DOT Order 5610.2C (‘‘Department of
Transportation Actions to Address
Environmental Justice in Minority
Populations and Low-Income
Populations’’) establishes departmental
procedures for effectuating Executive
Order 12898 promoting the principles of
environmental justice through full
consideration of environmental justice
principles throughout planning and
decision-making processes in the
development of programs, policies, and
activities—including PHMSA
rulemaking.
PHMSA has evaluated this proposed
rule under Executive Order 12898 and
DOT Order 5610.2C and preliminarily
determined that it would not cause
disproportionately high and adverse
human health and environmental effects
on minority and low-income
populations. The rulemaking is neither
directed toward a particular population,
region, or community, nor is it expected
to adversely impact any particular
population, region, or community. And
insofar as the rulemaking would not
adversely affect the safe transportation
of hazardous materials generally, the
proposed revisions would not entail
disproportionately high adverse risks for
minority and low-income populations.
This preliminary determination is
consistent with the recent Executive
Order 14096 (‘‘Revitalizing Our Nation’s
Commitment to Environmental Justice
for All’’),20 by achieving several goals,
19 59
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including continuing to deepen the
Administration’s whole of government
approach to environmental justice and
to better protect overburdened
communities from pollution and
environmental harms.
6. Proposed Finding of No Significant
Impact
As discussed in this DEA as well as
Section II of the notice, the proposed
actions of this rulemaking would
introduce efficiencies to the explosives
approval process and the way certain
low hazard Class 1 explosive materials
are authorized for transportation, and
provide clarity on whether tracer
ammunition for small arms cartridges
may be classed as Division 1.4S material
without the explosives approval
process. The proposed actions would
not cause environmental impact because
the changes proposed are procedural
and not substantive, and no reduction in
compliance with HMR requirements are
anticipated. There may be a negligible
impact by changing from paper
documents to reliance on electronic
systems. Nothing is different between
the approval and transport of explosives
and low hazard fireworks under the
current system and under the proposed
system other than how applications are
processed. Similarly, nothing is
different between the current
classification of tracer ammunition and
the proposed action except how
classification is determined (i.e., either
by formalized approval classification or
by self-classification). Therefore,
PHMSA proposes that, if adopted, this
rulemaking will result in no significant
impact to the human environment.
PHMSA welcomes feedback related to
environmental impacts that may result
if the proposed requirements are
adopted, as well possible alternatives
and their environmental impacts.
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I. Privacy Act
In accordance with 5 U.S.C. 553(c),
DOT solicits comments from the public
to better inform any amendments to the
hazardous materials program
procedures and the HMR considered in
this rulemaking. DOT posts these
comments, without edit, including any
personal information the commenter
provides, to https://
www.regulations.gov, as described in
the system of records notice (DOT/ALL–
14 FDMS). DOT’s complete Privacy Act
Statement is in the Federal Register,21
or on DOT’s website at https://
www.dot.gov/privacy.
21 65
FR 19477 (Apr. 11, 2000).
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J. Executive Order 13609 and
International Trade Analysis
Executive Order 13609 (‘‘Promoting
International Regulatory
Cooperation’’) 22 requires that agencies
consider whether the impacts associated
with significant variations between
domestic and international regulatory
approaches are unnecessary or may
impair the ability of American business
to export and compete internationally.
In meeting shared challenges involving
health, safety, labor, security,
environmental, and other issues,
international regulatory cooperation can
identify approaches that are at least as
protective as those that are or would be
adopted in the absence of such
cooperation. International regulatory
cooperation can also reduce, eliminate,
or prevent unnecessary differences in
regulatory requirements.
Similarly, the Trade Agreements Act
of 1979 (Pub. L. 96–39), as amended by
the Uruguay Round Agreements Act
(Pub. L. 103–465), prohibits Federal
agencies from establishing any
standards or engaging in related
activities that create unnecessary
obstacles to the foreign commerce of the
United States. Pursuant to the Trade
Agreements Act, the establishment of
standards is not considered an
unnecessary obstacle to the foreign
commerce of the United States, so long
as the standards have a legitimate
domestic objective, such as providing
for safety, and do not operate to exclude
imports that meet this objective. The
statute also requires consideration of
international standards and, where
appropriate, that they be the basis for
U.S. standards.
In developing requirements to allow
manufacturers to self-certify certain
fireworks as meeting criteria for
transportation as low hazard fireworks
in place of acquiring an explosives
approval for transportation, PHMSA has
made assurances that the process
facilitates international transport.
PHMSA realizes the absence of an
approval and the associated approval
number provides for domestic exception
from regulation of certain low hazard
novelty fireworks, and it has assessed
the effects of the proposed rule to
ensure it does not cause unnecessary
obstacles to foreign trade. In fact, the
proposed rule is expected to facilitate
international trade by harmonizing U.S.
and international requirements for the
transportation of hazardous materials.
The rule is expected to reduce
regulatory burdens and minimize delays
arising from having to comply with
22 77
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divergent regulatory requirements. This
rulemaking is consistent with Executive
Order 13609 and PHMSA’s obligations
under the Trade Agreements Act, as
amended.
K. National Technology Transfer and
Advancement Act
The National Technology Transfer
and Advancement Act of 1995 (15
U.S.C. 272 note) directs Federal
agencies to use voluntary consensus
standards in their regulatory activities
unless doing so would be inconsistent
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards (e.g.,
specification of materials, test methods,
or performance requirements)
developed or adopted by voluntary
consensus standard bodies. This NPRM
involves voluntary consensus standards,
which are discussed in Section I of this
NPRM.
L. Severability
The purpose of this proposed rule is
to operate holistically in addressing a
panoply of issues related to safety
hazards; the classification and approval
process for certain low-hazard
fireworks; permitting small arms
cartridges to include tracer ammunition;
and allowing for voluntary termination
of an explosive approval by the
approval holder. However, PHMSA
recognizes that certain provisions focus
on unique topics. Therefore, PHMSA
preliminarily finds that the various
provisions of this proposed rule are
severable and able to function
independently if severed from each
other. Thus, in the event a court were
to invalidate one or more of this
proposed rule’s unique provisions, the
remaining provisions should stand and
continue in effect. PHMSA seeks
comment on which portions of this
proposed rule should or should not be
severable.
M. Cybersecurity and Executive Order
14028
Executive Order 14028 (‘‘Improving
the Nation’s Cybersecurity’’) 23
expressed the Biden-Harris
Administration policy that ‘‘the
prevention, detection, assessment, and
remediation of cyber incidents is a top
priority and essential to national and
economic security.’’ Executive Order
14028 directed the Federal Government
to improve its efforts to identify, deter,
and respond to ‘‘persistent and
increasingly sophisticated malicious
cyber campaigns.’’ PHMSA has
considered the effects of this NPRM and
23 86
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determined its regulatory amendments
will not materially affect the
cybersecurity risk profile for the
classification and approval process for
certain low-hazard fireworks, for small
arms cartridges to include tracer
ammunition, and the transportation of
hazardous materials.
List of Subjects
49 CFR Part 107
Administrative practice and
procedure, Hazardous materials
transportation, Packaging and
containers, Penalties, Reporting and
recordkeeping requirements.
(ii) Explosive approval applications.
Filing of explosives approval and
fireworks approval applications as well
as certifications of low hazard fireworks
must be submitted, and will only be
accepted, using the PHMSA portal.
*
*
*
*
*
■ 3. In § 107.713, revise paragraph (c)
introductory text and add paragraph (e)
to read as follows:
§ 107.713 Approval modification,
suspension or termination.
*
*
*
*
*
(c) Except as provided in paragraphs
(d) and (e) of this section, before an
approval is modified, suspended, or
terminated, the Associate Administrator
notifies the holder in writing of the
proposed action and the reasons for it,
and provides an opportunity to show
cause why the proposed action should
not be taken.
*
*
*
*
*
(e) The Associate Administrator may
terminate an approval at the request of
the approval holder based on the
holder’s determination that it is no
longer needed. The approval holder
must submit the request in writing to
the Associate Administrator using the
PHMSA portal at: https://
portal.phmsa.dot.gov/.
49 CFR Part 171
Exports, Hazardous materials
transportation, Hazardous waste,
Imports, Incorporation by reference,
Reporting and recordkeeping
requirements.
49 CFR Part 173
Hazardous materials transportation,
Incorporation by reference, Packaging
and containers, Radioactive materials,
Reporting and recordkeeping
requirements.
In consideration of the foregoing,
PHMSA proposes to amend 49 CFR
chapter I as follows:
PART 107—HAZARDOUS MATERIALS
PROGRAM PROCEDURES
PART 171—GENERAL INFORMATION,
REGULATIONS, AND DEFINITIONS
1. The authority citation for part 107
continues to read as follows:
■
Authority: 49 U.S.C. 5101–5128, 44701;
Pub. L. 101–410 Section 4; Pub. L. 104–121
Sections 212–213; Pub. L. 104–134 Section
31001; Pub. L. 114–74 Section 701 (28 U.S.C.
2461 note); 49 CFR 1.81 and 1.97; 33 U.S.C.
1321.
Authority: 49 U.S.C. 5101–5128, 44701;
Pub. L. 101–410 section 4; Pub. L. 104–134,
section 31001; Pub. L. 114–74 section 701 (28
U.S.C. 2461 note); 49 CFR 1.81 and 1.97.
■
2. In § 107.705, revise paragraph (a)(1)
to read as follows:
■
khammond on DSKJM1Z7X2PROD with PROPOSALS
Jkt 262001
Definitions and abbreviations.
*
(a) * * *
(1) Filings. (i) Submission methods.
The registration, report, or application
may be filed with the Associate
Administrator for Hazardous Materials
Safety, Pipeline and Hazardous
Materials Safety Administration, U.S.
Department of Transportation, East
Building, 1200 New Jersey Avenue SE,
Washington, DC 20590–0001.
Applications may be filed using the
PHMSA portal at: https://
portal.phmsa.dot.gov/ or alternatively,
may be filed with any attached
supporting documentation in an
appropriate format by facsimile (fax) to:
(202) 366–3753 or (202) 366–3308, or by
electronic mail (email) to: approvals@
dot.gov.
16:15 Nov 29, 2023
5. In § 171.8, add a definition for ‘‘FW
number’’ in appropriate alphabetical
sequence to read as follows:
■
§ 171.8
§ 107.705 Registrations, reports, and
applications for approval.
VerDate Sep<11>2014
4. The authority citation for part 171
continues to read as follows:
*
*
*
*
FW number means a number
preceded by the prefix ‘‘FW’’, assigned
by PHMSA to a Division 1.4G Consumer
firework device that has been certified
under the provisions of § 173.64 of this
subchapter.
*
*
*
*
*
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 1.81, 1.96 and 1.97.
7. In § 173.56, revise paragraph (h)(3)
to read as follows:
■
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83527
§ 173.56 New explosives—definition and
procedures for classification and approval.
*
*
*
*
*
(h) * * *
(3) Ammunition (including tracer
ammunition) with inert projectile, or
blank ammunition; and
*
*
*
*
*
■ 8. In § 173.59, add a definition for
‘‘Low hazard firework’’ in alphabetical
order to read as follows:
§ 173.59 Description of terms for
explosives.
*
*
*
*
*
Low hazard firework. As listed in
§ 173.64 of this subchapter, are
pyrotechnic articles of certain chemical
composition, design, and packaging that
are not designed to leave ground level,
contain no aerial components, present a
low explosive hazard during
transportation, and comply with any
limits and requirements found therein.
Low hazard fireworks include ground
and novelty devices.
*
*
*
*
*
■ 9. Revise § 173.64 to read as follows:
§ 173.64 Exceptions for Division 1.3 and
1.4 fireworks.
(a) Classification and approval.
Notwithstanding the requirements of
§ 173.56(b), Division 1.3 and 1.4
fireworks may be classed and approved
by the Associate Administrator without
prior examination and offered for
transportation if the conditions of this
paragraph (a) are met (see § 173.65 for
an alternate method to approve Division
1.4G consumer fireworks using a DOTapproved Fireworks Certification
Agency):
(1) Fireworks must be manufactured
in accordance with the applicable
requirements in APA 87–1A, 87–1B,
and 87–1C (IBR, see § 171.7 of this
subchapter).
(2) The firework device must pass a
thermal stability test conducted by a
third-party laboratory or the
manufacturer. The test must be
performed by maintaining the device, or
a representative prototype of a large
device such as a display shell, at a
temperature of 75 °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 87–1A, 87–1B, and 87–1C and
is notified in writing by the Associate
Administrator that the fireworks have
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Federal Register / Vol. 88, No. 229 / Thursday, November 30, 2023 / Proposed Rules
been classed, approved, and assigned an
EX number. Each application must be
complete and include all relevant
background data and copies of all
applicable drawings, test results, and
any other pertinent information on each
device for which approval is being
requested. The manufacturer must sign
the application and certify that the
device for which approval is requested
conforms to the appropriate APA
Standard, that the descriptions and
technical information contained in the
application are complete and accurate,
and, with respect to APA 87–1A, that no
duplicate application has been
submitted to a fireworks certification
agency. If the application is denied, the
manufacturer will be notified in writing
of the reasons for the denial. The
Associate Administrator may require
that the fireworks be examined by an
agency listed in § 173.56(b)(1) of this
part.
(b) Additional exceptions for low
hazard Division 1.4 consumer fireworks.
Low hazard fireworks are pyrotechnic
articles of certain chemical composition,
design, and packaging such that they
present a low explosive hazard during
transportation. Low hazard ground
device fireworks listed in the table to
paragraph (b)(2) of this section and
meeting the specified conditions and
limitations are eligible for selfclassification and transport as UN0336,
Fireworks, Division 1.4G. Further,
certain low hazard novelty fireworks
listed in the table to paragraph (b)(3) of
this section meeting the specified
conditions and limitations may be
excepted from the requirements of this
subchapter as a Class 1 explosive
material. Low hazard fireworks are not
subject to the explosives approval
requirements of § 173.56 or the DOTapproved Fireworks Certification
Agency requirements of § 173.65.
(1) General requirements. No person
may manufacture and offer for transport
a low hazard firework unless
compliance with requirements of this
paragraph (b) has been certified with the
Associate Administrator. No person may
accept for transport a low hazard
firework that has not been certified as
specified in this section. If the person
certifying compliance is not a resident
of the United States, the person must
designate an agent for service in
accordance with § 105.40 of this
chapter. Additionally, low hazard
fireworks:
(i) Must successfully pass a thermal
stability test as specified in paragraph
(a)(2) of this section;
(ii) May not be transported as a
component part for another firework or
explosive; and
(iii) Must be marked with an FW
number issued by the Associate
Administrator. If the firework is too
small for the marking, the outer package
of the fireworks must be marked with
the FW number.
(2) Requirements specific to ground
firework devices. (i) Ground devices
must use chemicals in conformance
with the permitted and restricted
chemical list in APA 87–1A, Appendix
1.
(ii) When permitted, all reports are
limited to 50 mg of composition per
report.
(iii) Ground devices must be initiated
by a fuse; however, a fuse is not
required for the following types: flitter
sparklers, wire or dipped sparklers,
fountain (nitrocellulose), and snakes
(glow worms).
(iv) Authorized ground devices, and
their descriptions, specifications, and
special conditions for transport are set
forth as follows:
TABLE 1 TO PARAGRAPH (b)(2)—AUTHORIZED GROUND DEVICES AND SPECIFICATIONS
Type
Description
Specification
Chaser .................................
Consists of a paper or cardboard tube,
which vents out its fuse hole.
None.
Crackling Ball .......................
Consists of a spherical ball that contains
small granules of chemical composition that upon ignition produce sparks
and/or a crackling effect.
Consists of small granules of chemical
composition adhered to and encased
in a paper or cardboard wrapping that
upon ignition produce sparks and/or a
crackling effect.
Consists of a tube that contains small
granules of chemical composition that
upon ignition produce sparks and/or a
crackling effect.
Consists of a small paper-wrapped or
cardboard tube that produces a single
report.
20 grams total of chemical composition,
with multiple reports permitted (each
report limited to 50 milligrams).
20 total grams of chemical composition,
with no reports permitted.
20 total grams of chemical composition,
with no reports permitted.
Inner packaging cannot exceed 72 grams of composition.
20 total grams of chemical composition,
with no reports permitted.
Inner packaging cannot exceed 72 grams of composition.
50 milligrams of chemical composition
per firecracker.
Multiple firecrackers can
be fused together to
form a string. There is
no limit on number of
firecrackers in a string.
Inner packaging cannot exceed 60 grams of composition.
None.
Crackling Strip .....................
Crackling Tube ....................
Firecracker ...........................
Flasher/Strobe .....................
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Flitter Sparkler .....................
Fountain (Cone) ...................
VerDate Sep<11>2014
Consists of a small paper-wrapped or
cardboard tube that produces a crackling/flashing/strobe light effect.
Consists of a paper or cardboard tube
attached to a stick or wire. Upon ignition, the device produces a shower of
sparks, a colored flame, and/or a
crackling effect.
Consists of a paper or cardboard tube
that upon ignition produces a shower
consisting of any combination of colored sparks, color flame, crackle,
smoke, whistle, or micro star effects.
16:15 Nov 29, 2023
Jkt 262001
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Fmt 4702
Special conditions
5 total grams of chemical composition,
with no reports permitted.
25 total grams of chemical composition,
with no reports permitted.
Formulations containing chlorates are
limited to 4 grams with no more than
15 percent of the formulation being
chlorates.
50 total grams of chemical composition,
with no reports permitted.
Sfmt 4702
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30NOP1
Inner packaging cannot exceed 72 grams of composition.
None.
Federal Register / Vol. 88, No. 229 / Thursday, November 30, 2023 / Proposed Rules
83529
TABLE 1 TO PARAGRAPH (b)(2)—AUTHORIZED GROUND DEVICES AND SPECIFICATIONS—Continued
Type
Description
Specification
Fountain (Cylindrical) ...........
Consists of a paper or cardboard tube
that upon ignition produces a shower
consisting of any combination of colored sparks, color flame, crackle,
smoke, whistle, or micro star effects.
Consists of a cone or tube device that
produces a shower of small sparks,
color, and flame as its primary effect
using nitrocellulose as the major
chemical component.
Consists of a paper or cardboard tube
that upon ignition emits a shower of
sparks that vent out of an orifice causing the device to spin rapidly on the
ground.
Consists of a paper or cardboard tube
that upon ignition, emits a colored
flame with or without crackles or
sparks.
Consists of a paper or cardboard tube
that upon ignition emits smoke as the
primary effect.
100 total grams of chemical composition,
with no reports permitted.
None.
15 total grams of chemical composition,
with no reports permitted.
None.
20 total grams of chemical composition,
with reports permitted (each report limited to 50 milligrams).
Multiple ground spinners
can be fused together to
form a string. Strings are
limited to 20 grams of
total composition.
None.
Fountain (Nitrocellulose) ......
Ground Spinner ...................
Illuminating Torch ................
Smoke ..................................
Snake ...................................
khammond on DSKJM1Z7X2PROD with PROPOSALS
Specialty Device ..................
Consists of pressed pellet of pyrotechnic
composition that upon ignition produce
a snake-like ash that expands in
length as the composition is consumed.
Consists of a paper or cardboard
tube(s), e.g., in the shape of an animal or a small vehicle, that produces
multiple effects.
Wheel ...................................
Consists of a paper or cardboard tube(s)
placed on the ground or attached to a
post, by means of a nail, spike or
string. Upon ignition the wheel rotates,
producing a shower of sparks, color,
crackling, flame, or whistle effects.
Wire Sparkler or Dipped
Stick.
Consists of a metal wire or wood dowel
coated with a chemical composition.
Upon ignition, the device produces a
shower of sparks, a colored flame,
and/or a crackling effect.
(3) Requirements specific to novelty
firework devices. Except for
transportation by air, novelty fireworks
conforming to the requirements of this
paragraph (b)(3) are not subject to this
subchapter. For air transportation,
novelty devices must be transported as
required by this subchapter for
‘‘UN3178, Flammable solid, inorganic,
n.o.s. (Novelties), 4.1, PG II’’.
(i) Novelty devices must use
chemicals in conformance with the
VerDate Sep<11>2014
16:15 Nov 29, 2023
Jkt 262001
100 total grams of chemical composition,
with no reports permitted.
100 total grams of chemical composition.
All mixtures containing a chlorate must
contain an equal amount or greater
amount of a carbonate or bicarbonate
(e.g., calcium carbonate, sodium bicarbonate).
20 total grams of chemical composition,
with no reports. Only formulations of
nitrated asphalt, asphaltum, bitumen,
pitch, and/or tar with an oxidizer (with
or without a binder) are permitted.
20 total grams of chemical composition,
with reports permitted (each report limited to 50 milligrams).
No tube can contain more than 2 grams
of composition; tubes cannot contain
aerial components or internal shells.
200 total grams of chemical composition,
with no reports.
No tube can contain more than 60 total
grams of composition, which includes
a 20 gram propellant limit per tube.
Tubes cannot contain aerial components
Handles are not permitted.
100 total grams of chemical composition,
with no reports permitted.
Formulations containing chlorates are
limited to 4 grams with no more than
15 percent of the formulations being
chlorates.
permitted and restricted chemical list in
APA Standard 87–1A, Appendix 1 (IBR,
see § 171.7 of this subchapter).
(ii) Inner packagings of novelty
devices must be packaged in strong
outer packagings. The packages must
conform to the requirements of § 173.24.
The maximum gross weight of a
completed package may not exceed 30
kg (66 pounds).
(iii) Each outer package, and overpack
if used, containing novelty devices must
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Special conditions
Sfmt 4702
Multiple smoke devices
can be fused together to
form a string. Strings are
limited to 100 grams of
total composition.
None.
None.
None.
Composition weight per
inner packaging cannot
exceed 120 grams.
be plainly marked ‘‘NOVELTIES, IN
CONFORMANCE WITH § 173.64, NOT
REGULATED, EXCEPT WHEN
TRANSPORTED BY AIR’’.
(iv) Authorized novelty devices, and
their descriptions, specifications, and
special conditions for transport are set
forth as follows:
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Federal Register / Vol. 88, No. 229 / Thursday, November 30, 2023 / Proposed Rules
TABLE 2 TO PARAGRAPH (b)(3)—AUTHORIZED NOVELTY DEVICES AND SPECIFICATIONS
Type
Description
Booby Trap/Pull Apart .........
Is a device that is actuated by means of
friction. Pulling a string or strings apart
activate the device producing a noise
effect.
Consists of a paper or cardboard tube
attached to a stick or wire. Upon ignition, the device produces a shower of
sparks, a colored flame, and/or a
crackling effect.
Is a device that is actuated by means of
friction. Pulling a string or trigger activates the device producing a noise effect and releasing paper streamers or
confetti. Common examples resemble
champagne bottles and toy pistols.
Consists of pressed pellet of pyrotechnic
composition
that
upon
ignition,
produce a snake-like ash that expands
in length as the composition is consumed.
Consists of small, paper-wrapped items.
When dropped, the device activates,
producing a noise effect.
0.016 total grams of chemical composi- Inner packages must not
tion, which is limited to barium, potascontain more than 12
sium, and/or sodium chlorate with red
devices.
phosphorus.
5 total grams of chemical composition,
with no reports permitted. Formulations containing chlorates are limited
to 4 grams with no more than 15 percent of the formulation being chlorates.
0.016 total grams of chemical composi- Inner packages must not
tion, which is limited to barium, potascontain more than 72
sium, and/or sodium chlorate with red
devices.
phosphorus.
Novelty Wire Sparkler or
Novelty Dipped Stick.
Consists of a metal wire or wood dowel
coated with a chemical composition.
Upon ignition, the device produces a
shower of sparks, a colored flame,
and/or a crackling effect.
Novelty Smoke Device ........
Consists of a paper or cardboard tube
that upon ignition, emits smoke as the
only effect.
25 total grams of chemical composition,
with no reports permitted. Formulations containing perchlorates are limited to 5 grams. Formulations containing chlorates are limited to 4
grams with no more than 15 percent
of the formulations being chlorates.
5 total grams of chemical composition,
with no reports permitted. All mixtures
containing a chlorate must contain an
equal amount or greater amount of a
carbonate or bicarbonate (e.g., calcium carbonate, sodium bicarbonate).
Novelty Flitter Sparkler ........
Party Poppers ......................
Novelty Snakes and GlowWorms.
Snappers .............................
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(4) Recordkeeping requirements. In
addition to the certification of each low
hazard firework in accordance with this
section, the manufacturer must maintain
a record of the documents
demonstrating compliance with this
section. Each record must clearly
provide the FW number assigned to the
device certified. The record must
contain the following information at
minimum: FW certification document,
VerDate Sep<11>2014
16:15 Nov 29, 2023
Jkt 262001
Specifications
2 total grams of chemical composition.
Only formulations of nitrated asphalt,
asphaltum, bitumen, pitch, and/or tar
with an oxidizer (with or without a
binder) are permitted.
0.001 total grams of silver fulminate
coated on small bits of sand or gravel.
category of device, drawing, chemical
composition list, gram quantities, and if
applicable, U.S. agent of service
information. The record must be
accessible at or through the principal
place of business for five years after the
device is manufactured and must be
made available, upon request, to an
authorized official of a Federal, State, or
local government agency at a reasonable
PO 00000
Special conditions
Inner packaging must not
contain more than 25
devices.
Inner packages must not
contain more than 50
devices with sawdust or
other impact absorbing
materials.
Inner packages must not
contain more than 8 devices.
Inner packages must not
contain more than 72
devices.
time and location, not to exceed five (5)
business days.
Issued in Washington, DC, on November
17, 2023, under authority delegated in 49
CFR 1.97.
William S. Schoonover,
Associate Administrator for Hazardous
Materials Safety, Pipeline and Hazardous
Materials Safety Administration.
[FR Doc. 2023–25887 Filed 11–29–23; 8:45 am]
BILLING CODE 4910–60–P
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]]>Agencies
[Federal Register Volume 88, Number 229 (Thursday, November 30, 2023)]
[Proposed Rules]
[Pages 83514-83530]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25887]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 107, 171, and 173
[Docket No. PHMSA-2020-0103 (HM-257A)]
RIN 2137-AF50
Hazardous Materials: Streamlining Requirements for the Approval
of Certain Energetic Materials
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
Department of Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: PHMSA proposes to amend the Hazardous Materials Regulations to
revise the classification and approval process for certain low-hazard
fireworks; to revise classification criteria for small arms cartridges
to include tracer ammunition; to include the PHMSA portal as the method
to submit applications for all explosives approvals; and to allow for
voluntary termination of an explosive approval by the approval holder.
DATES: Comments must be submitted by February 28, 2024. PHMSA will
consider late-filed comments to the extent possible.
ADDRESSES: You may submit comments by identification of the docket
number (PHMSA-2020-0103 [HM-257A]) by any of the following methods:
Federal Rulemaking Portal: https://www.regulations.gov. Follow the
online instructions for submitting comments.
Fax: 1-202-493-2251.
Mail: Docket Management System, U.S. Department of Transportation,
Docket Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey
Avenue SE, Washington, DC 20590-0001.
Hand Delivery: U.S. Department of Transportation, Docket
Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue
SE, Washington, DC 20590-0001 between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
Instructions: Include the agency name and docket number PHMSA-2020-
0103 (HM-257A) or RIN 2137-AF50 for this rulemaking at the beginning of
your comment. Note that all comments received will be posted without
change to https://www.regulations.gov including any personal
information provided. If sent by mail, comments must be submitted in
duplicate. Persons wishing to receive confirmation of receipt of their
comments must include a self-addressed stamped postcard.
Docket: For access to the public docket to read background
documents or comments received, visit https://www.regulations.gov or
the DOT Docket Operations Office (see ADDRESSES).
Confidential Business Information: Confidential Business
Information (CBI) is commercial or financial information that is both
customarily and actually treated as private by its owner. Under the
Freedom of Information Act (FOIA; 5 U.S.C. 552), CBI is exempt from
public disclosure. If your comments responsive to this NPRM contain
commercial or financial information that is customarily treated as
private, that you actually treat as private, and that is relevant or
responsive to this NPRM, it is important that you clearly designate the
submitted comments as CBI. Please mark each page of your submission
containing CBI as ``PROPIN.'' Submissions containing CBI should be sent
to Eugenio Cardez, U.S. Department of Transportation, 1200 New Jersey
Avenue SE, Washington, DC 20590-0001. Any commentary PHMSA receives
that is not specifically designated as CBI will be placed in the public
docket for this rulemaking.
FOR FURTHER INFORMATION CONTACT: Mr. Eugenio Cardez, Transportation
Specialist, Standards and Rulemaking Division, Office of Hazardous
Materials Safety, 202-366-8553, 1200 New Jersey Avenue SE, Washington,
DC 20590.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Low Hazard Fireworks
B. Tracer Ammunition
C. Changes to the Approvals Process
II. Incorporation by Reference Discussion Under 1 CFR Part 51
III. Proposed Amendments
A. Establishing Exceptions for Ground and Novelty Device
Fireworks
B. Authorizing the Self-Classification of Tracer Ammunition
C. Amending the Approvals Process
IV. Section-by-Section Review
V. Regulatory Analyses and Notices
A. Statutory/Legal Authority
B. Executive Orders 12866 and 14094; DOT Regulatory Policies and
Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act and Executive Order 13272
F. Paperwork Reduction Act
G. Unfunded Mandates Reform Act of 1995
H. Draft Environmental Assessment
I. Privacy Act
J. Executive Order 13609 and International Trade Analysis
K. National Technology Transfer and Advancement Act
L. Severability
M. Cybersecurity and Executive Order 14028
I. Background
The pyrotechnic industry is a global logistics supply chain
comprised of mostly foreign fireworks manufacturers and domestic
importers, retailers, distributors, carriers, and consumers. Fireworks
are a Class 1 explosive material in accordance with the Hazardous
Materials Regulations (HMR; 49 Code of Federal Regulations (CFR) parts
171-180). Class 1 explosives are divided into six divisions based on
their explosion hazard: 1.1, 1.2, 1.3, 1.4, 1.5, and 1.6. PHMSA
proposes to amend the classification and approval process of certain
low-hazard fireworks of Division 1.4G. As defined in Sec. 173.50 of
the HMR, Division 1.4 consists of explosives that present a minor
explosion hazard. Division 1.4 explosives have explosive effects that
are largely confined to the package; no projection of fragments of
appreciable size or range is to be expected; and an external fire must
not cause virtually instantaneous explosion of almost the entire
contents of the package. Explosives are assigned compatibility codes
used to specify the controls for the transportation, and storage
related thereto, of explosives and to prevent an increase in hazard
that might result if certain types of explosives were stored or
transported together. Explosives assigned a ``G'' code are not limited
to fireworks and may also be defined as pyrotechnic substances or
articles containing a pyrotechnic substance, or articles containing
both an explosive substance and an illuminating, incendiary, tear-
producing or smoke-producing substance.
Subpart C of part 173 details requirements for the classification
and packaging of Class 1 explosive materials and specifies that
explosives, including fireworks, must be approved and assigned an
explosives approval number --i.e., an EX number--by PHMSA, based on
actual testing and classification, prior to transportation to, from,
and within the United States. Section 173.64 permits Division 1.3G and
1.4G fireworks to be approved without prior examination based on
certain conditions, including compliance with the provisions of the
2018 American Pyrotechnic Association (APA) Standards 87-1A, 1B, and
1C,
[[Page 83515]]
which are incorporated by reference in Sec. 171.7.\1\ Further, Sec.
173.65 permits--in lieu of an approval--Division 1.4G consumer
fireworks (as defined in Sec. 171.8) to be certified by a DOT-approved
Fireworks Certification Agency (FCA). After the FCA reviews the
consumer fireworks application and certifies it meets the requirements,
the FCA assigns an FC number in place of an EX number for Division 1.4G
consumer fireworks.
---------------------------------------------------------------------------
\1\ The 2018 APA Standards 87-1A, 1B, and 1C were incorporated
by reference in the Hazardous Materials: Adoption of Miscellaneous
Petitions To Reduce Regulatory Burdens Final Rule. 85 FR 75680 (Nov.
25, 2020). See https://www.federalregister.gov/documents/2020/11/25/2020-23712/hazardous-materials-adoption-of-miscellaneous-petitions-to-reduce-regulatory-burdens.
---------------------------------------------------------------------------
All fireworks transported to, from, and within the United States
must be approved by PHMSA or certified by an FCA. The current approval
process requires PHMSA personnel to conduct a multi-step review of each
application, which includes accepting an application, entering
application data into a database; reviewing the application for
completeness and compliance with the APA standard; drafting the final
action letter; conducting the final review; and signing and issuing the
final approval. PHMSA estimates its review process takes about two
hours per application, for an estimated 425 labor hours annually. PHMSA
provides approvals free of charge as a public service to manufacturers.
However, manufacturers have the option to use commercial FCAs for
Division 1.4 consumer fireworks, which certify products for a fee, and
may process approvals faster. See the preliminary regulatory impact
analysis (PRIA) in the docket for this rulemaking for additional
information.\2\
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\2\ The PRIA is available in the regulatory docket (Docket ID:
PHMSA-2020-0103) at www.regulations.gov.
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A. Low Hazard Fireworks
Low hazard fireworks refer to a group of explosive articles that
are not designed to leave ground level, contain no aerial components,
and contain less than 100 grams of chemical composition per tube. These
devices have a minimal and well-understood hazard as explosives.
Specifically, low hazard fireworks can only be manufactured using
chemicals from the ``Permitted and Restricted Chemical Table for
Consumer Fireworks and Novelties,'' \3\ and reports \4\ are restricted
to 50 milligrams of report composition. The European community
conducted extensive fireworks testing prior to the development of the
United Nations (UN) default fireworks table. The devices proposed under
this rulemaking for classification as Division 1.4G fireworks are
consistent with the UN default table, as well as 30 years of
classification experience under the APA standards.
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\3\ https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2021-09/2018%20APA%2087-1%20A.pdf.
\4\ Report: A concussive effect and flash of light produced by
the ignition of a chemical composition.
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Low hazard fireworks include ground and novelty firework devices,
as currently listed in the 2018 APA Standard 87-1A.
Ground Devices
The 2018 APA Standard 87-1A defines ``ground device'' as a device
designed to produce its effects at or near ground level. The following
17 individual ground devices are defined as low hazard fireworks and
may be approved or certified for transportation in accordance with the
HMR provided they meet the requirements for construction, formulation,
and packaging: Chaser, Crackling Ball, Crackling Strip, Crackling Tube,
Firecracker, Flasher/Strobe, Flitter Sparkler, Fountain Cone, Fountain
Cylindrical, Fountain Nitrocellulose, Ground Spinner, Illuminating
Torch, Smoke, Snake, Specialty Device, Wheel, and Wire Sparkler or
Dipped Stick.
Ground devices meeting the provisions of the 2018 APA Standard 87-
1A are classified and described as ``UN0336, Fireworks, Division
1.4G.'' Currently, ground devices are either approved by PHMSA
personnel or certified by an FCA upon completion of a multi-step review
of each application. PHMSA proposes streamlining the approval or
certification process of these fireworks by allowing self-certification
using an online application in the PHMSA portal with an automated
process for review and issuance of a certification. This automated
process may be used for the low hazard fireworks identified in this
rule in lieu of the current process and would no longer require PHMSA
or FCA personnel to conduct time-consuming reviews of each application
or impose a cost on manufacturers who opt to use a FCA to certify these
fireworks. Manufacturers of fireworks that meet the required criteria
for the construction, formulation, and packaging of these ground
devices--specifically discussed in Section II: Proposed Amendments--
would certify compliance with specified conditions and limitations
online and receive a certificate with a unique identifier number (i.e.,
FW number) for each firework type. The online system will provide
immediate comparison of the technical information provided against the
criteria established for low hazard fireworks. Because of the low
hazard associated with these fireworks, and because we maintain
oversight through PHMSA's Quality Assurance and Quality Control (QA/QC)
review program \5\ of applications submitted through the PHMSA portal,
PHMSA believes the current safety level for transport of these
fireworks will be maintained when using this process for certification
of eligible ground device fireworks.
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\5\ The PHMSA QA/QC Low Hazard Fireworks Review Program is
currently under development while completing development of the
electronic process, and when finalized will be similar to the PHMSA
Fireworks FCA QA/QC Review Program.
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Multi-tube devices, such as cake and combination fireworks devices,
are excluded from this rulemaking. PHMSA is not proposing that multi-
tube devices be allowed to be self-certified via the PHMSA portal at
this time; however, manufacturers will still use the PHMSA portal for
submitting an application for the standard explosive approval.
Novelty Devices
In 1995, PHMSA issued ``Guidance and Criteria for Fireworks
Novelties,'' which sought to resolve confusion regarding novelty
devices (i.e., novelties) and PHMSA's explosives regulations. The
guidance document was later reissued under the same name in 2005 and
2015, with only editorial changes. The current version \6\ includes
five novelties that--when shipped domestically by ground, rail, or
vessel--may be transported as not regulated as explosives when
manufactured in accordance with the provisions outlined for each type
of device as specified in the 2001 APA Standard 87-1. The 2018 APA
Standard 87-1A includes two additional novelties that may be excluded
from HMR requirements--for a total of seven novelties for consideration
for approval or certification for transportation as not subject to
further regulation in accordance with proposed changes to the HMR,
provided they meet the conditional requirements for construction,
formulation, packaging, and transportation mode. The seven novelties
are Booby Trap/Pull Apart, Novelty Flitter Sparkler, Party Popper,
Novelty Snake, Snapper, Novelty Wire Sparkler or Novelty Dipped Stick,
and Novelty Smoke Device. However, when these novelties are prepared
for
[[Page 83516]]
transportation by air, they must be classified and described as
``UN3178, Flammable solid, inorganic, n.o.s. (novelties)'' and shipped
in accordance with requirements of the HMR.
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\6\ See ``Guidance and Criteria for Fireworks Novelties,''
available at: https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/approvals-and-permits/hazmat/energetic-materials-approvals/57711/inalguidancefandcriteriaforfireworksnoveltydevices03192015.pdf.
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A PHMSA approval or FCA certification is not required for novelties
manufactured in accordance with the provisions outlined for each type
specified in the APA standards when transported domestically by ground,
rail, or vessel, but this exception is only applicable within the
United States and its territories. PHMSA proposes to authorize the use
of the automated self-certification process to enable the manufacturer
to receive a certificate for use with international transportation.
Manufacturers of novelties meeting the required criteria for the
construction, formulation, and packaging of these devices would certify
compliance with specified conditions and limitations online and receive
a certificate with a unique identifier (defined as an ``FW number'')
for each firework type, in the same manner proposed for ground devices.
There have been no systemic safety issues or safety concerns
involving shipments of novelties that meet the requirements of both the
APA standards and PHMSA's guidance memo. The history of safe shipments
helps demonstrate that the proposed amendment will not have an adverse
effect on safe transportation of these fireworks. Rather, the proposed
changes ++in this NPRM will codify existing guidance to promote
increased regulatory clarity and consistency, which will--at a
minimum--maintain the current level of safety. Publication of a final
rule will supersede previously issued guidance on this matter.
B. Tracer Ammunition
Section 173.56(h) authorizes self-classification of certain types
of small arms cartridges into Division 1.4S, provided certain
conditions are met. Explosives assigned an ``S'' code are defined as
substances or articles so packed or designed that any hazardous effects
arising from accidental functioning are limited to the extent that they
do not significantly hinder or prohibit firefighting or other emergency
response efforts in the immediate vicinity of the package. In
particular, Sec. 173.56(h)(3) specifies a condition that the
ammunition has an inert projectile or is blank. However, the current
criteria is silent on whether this ammunition includes tracer
ammunition. Tracer ammunition utilizes a small amount of a pyrotechnic
charges at the base or as coating of the projectile to make the
trajectory of the projectile visible to the naked eye. As such,
considering the Sec. 173.56(h)(3) condition, affected entities have
expressed uncertainty whether tracer ammunition is considered inert
and, therefore, qualifies for the exception in paragraph (h). PHMSA
considers the small amount of pyrotechnic charge as a negligible
quantity of explosive material compared to the quantity of propelling
charge contained within the cartridge itself, and this small amount of
pyrotechnic charge at the base of or coated on the projectile does not
increase the hazard in a bonfire test nor make unintentional initiation
any more likely. In this rulemaking, PHMSA is considering allowing
tracer ammunition to be eligible for self-classification as a Division
1.4S material provided all criteria outlined in Sec. 173.56(h) are
met.
C. Changes to the Approval Process
Currently, as part of the Hazardous Materials Program Procedures,
in 49 CFR 107.705, the approval process for submitting applications
includes mail, email, or fax. Although not explicitly stated, PHMSA
also accepts applications for approvals submitted through the PHMSA
portal.\7\ PHMSA proposes to amend 49 CFR 107.705 to add the PHMSA
portal to the current options to submit all types of approval
applications, and to specify that use of the PHMSA portal will be the
only option to submit explosives approval applications and to self-
certify manufacture of low hazard fireworks. To be clear, PHMSA
proposes that from the effective date of a published final rule,
persons will no longer be able to submit explosives approval
applications by mail, email, or fax and must use the PHMSA portal.
PHMSA believes efficiencies will be gained by moving to an electronic
only service. The PHMSA portal provides the public online access to
PHMSA services, creating a single source for Hazardous Materials and
Pipeline Safety applications and data. Persons need only to register to
create an account to access and use the portal. Further discussion is
provided in ``Section II.C.''
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\7\ The PHMSA portal is available online at https://portal.phmsa.dot.gov/phmsapub/faces/PHMSAHome;PHMSAPUB_SESSIONID=aHhG4dIf1U0E2nq599uvQ-
RWl3nzKlgWsLSOcwxPNzx1te7cDD3R!883673165?req=-
3710157719365173927&attempt=0&_afrLoop=1686827584595767&_afrWindowMod
e=0&_afrWindowId=null&_adf.ctrl-state=ns6jrdcpu_1.
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Furthermore, 49 CFR 107.713 describes the process for the
modification, suspension, and termination of approvals. As currently
prescribed in 49 CFR 107.713(c), before an approval is modified,
suspended, or terminated, PHMSA must provide approval holders an
opportunity to show cause why the proposed action should not be taken.
PHMSA proposes to add a new paragraph (e) to allow approval holders to
request termination of approvals, and to revise paragraph (c) to
clarify that when an approval holder voluntarily seeks to terminate an
approval, PHMSA is not required to issue a show cause letter.
II. Incorporation by Reference Discussion Under 1 CFR Part 51
According to the Office of Management and Budget (OMB), Circular A-
119, ``Federal Participation in the Development and Use of Voluntary
Consensus Standards and in Conformity Assessment Activities,''
government agencies must use voluntary consensus standards wherever
practical in the development of regulations.
PHMSA currently incorporates by reference into the HMR all or parts
of numerous standards and specifications developed and published by
standard development organizations (SDO). In general, SDOs update and
revise their published standards every two to five years to reflect
modern technology and best technical practices. The National Technology
Transfer and Advancement Act of 1995 (NTTAA; Pub. L. 104-113) directs
Federal agencies to use standards developed by voluntary consensus
standards bodies in lieu of government-written standards whenever
possible. Voluntary consensus standards bodies develop, establish, or
coordinate technical standards using agreed-upon procedures. OMB issued
Circular A-119 to implement section 12(d) of the NTTAA relative to the
utilization of consensus technical standards by Federal agencies. This
circular provides guidance for agencies participating in voluntary
consensus standards bodies and describes procedures for satisfying the
reporting requirements in the NTTAA. Accordingly, PHMSA is responsible
for determining which standards currently referenced in the HMR should
be updated, revised, or removed, and which standards should be added to
the HMR. Revisions to materials incorporated by reference in the HMR
are handled via the rulemaking process, which allows for the public and
regulated entities to provide input. During the rulemaking process,
PHMSA must also obtain approval from the Office of the Federal Register
to incorporate by reference any new materials. The Office of the
Federal Register issued a rulemaking \8\ that
[[Page 83517]]
revised 1 CFR 51.5 to require that an agency detail in the preamble of
an NPRM the ways the materials it proposes to incorporate by reference
are reasonably available to interested parties, or how the agency
worked to make those materials reasonably available to interested
parties.
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\8\ 79 FR 66278 (Nov. 7, 2014).
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The following standards appear in the regulatory text of this NPRM
and have already been approved for the locations in which they appear:
(1) APA 87-1A: Standard for the Construction, Classification, Approval
and Transportation of Consumer Fireworks; (2) APA 87-1B: Standard for
the Construction, Classification, Approval, and Transportation of
Display Fireworks; and (3) APA 87-1C: Standard for the Construction,
Classification, Approval, and Transportation of Entertainment Industry
and Technical Pyrotechnics. No changes to these standards are proposed
in this NPRM.
III. Proposed Amendments
To streamline procedural requirements for fireworks manufacturers
and shippers, PHMSA proposes changes to the regulations relating to
PHMSA's explosives approval program specific to fireworks. PHMSA also
proposes changes to the HMR to address classification and packaging
inconsistencies for tracer ammunition. PHMSA will continue to use the
current approval process for Division 1.4G consumer fireworks in
accordance with requirements specified in Sec. Sec. 173.56(b), (f), or
(i), and 173.65. However, instead of the current approval process,
PHMSA proposes to permit manufacturers to self-certify classification
of certain ground and novelty device fireworks using the PHMSA portal,
as discussed previously and further below. Furthermore, PHMSA proposes
to revise the self-classification of inert projectile cartridges in
Sec. 173.56(h) to include tracer ammunition; amend 49 CFR 107.705 to
require use of the PHMSA portal as the only submittal option for
explosives approval applications; and amend 49 CFR 107.713 to clarify
that an approval holder may voluntarily terminate an approval and that
a show cause letter from PHMSA is unnecessary when approval holders
request to terminate approvals voluntarily.
In the PRIA supporting this rulemaking, PHMSA determined that the
aggregate benefits of the amendments proposed justify their aggregate
costs. If adopted in a final rule, the amendments proposed herein are
expected to reduce the paperwork burden on the regulated community and
PHMSA personnel since fewer paper-based explosives approval
applications will be submitted and processed. The overall net benefits
include a cost savings of 425 labor hours annually. See the PRIA for
additional information. These cost savings will not have a material
effect on the safety impact of PHMSA's explosives approval program.
A. Establishing Exceptions for Ground and Novelty Device Fireworks
PHMSA proposes to revise Sec. 173.64 to outline the exceptions for
ground and novelty device fireworks. Specifically, for certain low
hazard fireworks of these types, the section would authorize exception
from the standard explosive device approval process for classification
of Division 1.4G fireworks. These exceptions would be implemented by
establishing an automated process within the PHMSA portal for self-
certification, review of the information provided, and issuance of a
certificate with a unique identification (i.e., FW number). This
process may be used for the ground and novelty devices identified in
this rulemaking in lieu of the current explosive approval process.
PHMSA personnel would no longer be required to conduct a time-consuming
review of each application. The automated review process will require
the same information as currently required by the HMR. However, the
diagram of the device and chemical formulation sheets will not require
firsthand review by PHMSA personnel when compliance is certified by the
applicant. PHMSA believes this proposed change is consistent with our
Agency mission to protect the health and safety of the public and the
environment, and consistent with Executive Order 12866 \9\ that in part
calls for agencies to examine existing regulations and identify and
assess available alternatives to direct regulation. In this case, the
current regulations to ensure the safe transport of explosives require
explosives--such as fireworks--to be examined, classed, and approved by
PHMSA; and further that certain fireworks manufactured according to APA
87-1A may be certified for transportation by a DOT-approved FCA
instead. PHMSA believes that upon examination of the existing
regulation and in consideration of the low safety hazard associated
with certain ground and novelty devices, this proposal to streamline
the process authorizing their manufacture and transport by self-
certification benefits the public. PHMSA proposes that self-
certification will introduce efficiencies and maintain the safety of
transporting these fireworks under the HMR. To correspond to the
changes proposed in this NPRM, PHMSA proposes to add a definition for
``low hazard firework'' to Sec. 173.59.
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\9\ 58 FR 51735 (Oct. 4, 1993).
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Ground Devices
PHMSA proposes that ground device fireworks certified using the
PHMSA portal as conforming to the construction, formulation, and
packaging requirements in revised Sec. 173.64, will be authorized for
transport as ``UN0336, Fireworks, 1.4G.'' Seventeen ground devices will
be eligible for this new certification process: Chaser, Crackling Ball,
Crackling Strip, Crackling Tube, Firecracker, Flasher/Strobe, Flitter
Sparkler, Fountain Cone, Fountain Cylindrical, Fountain Nitrocellulose,
Ground Spinner, Illuminating Torch, Smoke, Snake, Specialty Device,
Wheel, and Wire Sparkler or Dipped Stick. Multi-tube devices,\10\ such
as cake and combination devices, are excluded from eligibility for
certification using the automated process.
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\10\ Multi-tube devices are devices with more than one tube that
contains fireworks (i.e., pyrotechnic effects).
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PHMSA proposes specific criteria for manufacturing (construction
and formulation) and packaging of these ground devices. The fireworks
would be subject to both general and specific requirements as presented
below in the table of Proposed Criteria for Ground Devices. The
proposed general requirements for ground devices are as follows:
Devices must use chemicals in conformance with the
permitted and restricted chemical table in the edition of APA Standard
87-1A, Appendix 1, incorporated by reference in Sec. 173.64. The 2018
edition of the standard is currently incorporated by reference. Note
that all chemical specifications in the table are maximum limits.
All reports are limited to 50 mg (0.050 g) of composition
per report.
All devices are initiated by a safety fuse with the
exception of firecrackers, flitter sparklers, nitrocellulose fountains,
snakes, wire sparklers, or dipped sticks.
All devices must be finished (they cannot be a component
intended to be used in another device).
All devices must successfully pass a thermal stability
test as specified in Sec. 173.64(a)(2).
Each device must be marked with the alphanumeric PHMSA-
assigned certification number (``FW number'') consisting of the letters
FW, followed by
[[Page 83518]]
the year and month issued, and a sequential number based on order of
issuance that year (e.g., FWYYYYMMSSSS). If the device is too small,
the package that contains the device must display the certification
number.
The specific requirements for each of the 17 eligible ground device
types are as follows:
Proposed Criteria for Ground Devices
----------------------------------------------------------------------------------------------------------------
Device Definition Specification \11\ Special conditions
----------------------------------------------------------------------------------------------------------------
Chaser............................... Consists of a paper or 20 total grams of None.
cardboard tube, which chemical composition,
vents out the fuse end with multiple reports
of the tube. permitted.
Crackling Ball....................... Consists of a spherical 20 total grams of Inner packaging cannot
ball that contains chemical composition, exceed 72 grams of
small granules of with no reports composition.
chemical composition permitted.
that upon ignition
produce sparks and/or
a crackling effect.
Crackling Strip...................... Consists of small 20 total grams of Inner packaging cannot
granules of chemical chemical composition, exceed 72 grams of
composition adhered to with no reports composition.
and encased in a paper permitted.
or cardboard wrapping
that upon ignition
produce sparks and/or
a crackling effect.
Crackling Tube....................... Consists of a tube that 20 total grams of Inner packaging cannot
contains small chemical composition, exceed 72 grams of
granules of chemical with no reports composition.
composition that upon permitted.
ignition produce
sparks and/or a
crackling effect.
Firecracker.......................... Consists of a small 50 milligrams of Multiple firecrackers
paper-wrapped or chemical composition can be fused together
cardboard tube that per firecracker. to form a string.
produces a single There is no limit on
report. number of firecrackers
in a string.
Flasher/Strobe....................... Consists of a paper- 5 total grams of Inner packaging cannot
wrapped or cardboard chemical composition, exceed 60 grams of
tube that produces a with no reports composition.
crackling/flashing/ permitted.
strobing light effect.
Flitter Sparkler..................... Consists of a paper or 25 total grams of None.
cardboard tube chemical composition,
attached to a stick or with no reports
wire. Upon ignition, permitted..
the device produces a Formulations containing
shower of sparks, a chlorates are limited
colored flame and/or a to 4 grams with no
crackling effect. more than 15 percent
of the formulations
being chlorates.
Fountain (Cone)...................... Consists of a conical 50 total grams of None.
paper or cardboard chemical composition,
container that upon with no reports
ignition produces a permitted.
shower consisting of
any combination of
colored sparks, color
flame, crackle, smoke,
whistle and/or micro
star effects.
Fountain (Cylindrical)............... Consists of a paper or 100 total grams of None.
cardboard tube that chemical composition,
upon ignition produces with no reports
a shower consisting of permitted.
any combination of
colored sparks, color
flame, crackle, smoke,
and whistle or micro
star effects.
Fountain (Nitrocellulose)............ Consists of a paper or 15 total grams of None.
cardboard cone or tube chemical composition,
device that produces a with no reports
shower of small permitted.
sparks, color, and
flame as its primary
effect using
nitrocellulose as the
major chemical
component.
Ground Spinner....................... Consists of a paper or 20 total grams of Multiple ground
cardboard tube that chemical composition, spinners can be fused
upon ignition emits a with reports permitted. together to form a
shower of colored string. Strings are
sparks that vents out limited to 20 grams of
of an orifice, causing total composition.
the device to spin
rapidly on the ground.
Illuminating Torch................... Consists of a paper or 100 total grams of None.
cardboard tube that chemical composition,
upon ignition, emits a with no reports
colored flame with or permitted.
without crackles or
sparks.
[[Page 83519]]
Smoke................................ Consists of a paper or 100 total grams of Multiple smoke devices
cardboard tube that chemical composition. can be fused together
upon ignition, emits All mixtures to form a string.
smoke as the primary containing a chlorate Strings are limited to
effect. must contain an equal 100 grams of total
amount or greater composition.
amount of a carbonate
or bicarbonate.
Snake................................ Consists of pressed 20 total grams of None.
pellet of pyrotechnic chemical composition,
composition that upon with no reports.
ignition, produces a Only formulations of
snake-like ash that nitrated asphalt,
expands in length as asphaltum, bitumen,
the composition is pitch, and/or tar with
consumed. an oxidizer (with or
without a binder) are
permitted.
Specialty Device..................... Consists of a paper or 20 total grams of No tube can contain
cardboard tube(s), chemical composition, more than 2 grams of
e.g., in the shape of with reports permitted. composition; tubes
an animal or a small cannot contain aerial
vehicle, that produces components or internal
multiple effects. shells.
Wheel................................ Consists of a paper or 200 total grams of None.
cardboard tube placed chemical composition,
on the ground or with no reports.
attached to a post, by No tube can contain
means of a nail, more than 60 total
spike, or string. Upon grams of composition,
ignition, the wheel which includes a 20
rotates producing a gram propellant limit
shower of sparks, per tube.
color, crackling, Tubes cannot contain
flame, or whistle aerial components..
effects. Handles are not
permitted..
Wire Sparkler or Dipped Stick........ Consists of a metal 100 total grams of Inner packaging cannot
wire or wood dowel chemical composition, exceed 120 grams of
coated with a chemical with no reports composition.
composition. Upon permitted.
ignition, the device Formulations containing
produces a shower of chlorates are limited
sparks, a colored to four grams with no
flame, and/or a more than 15 percent
crackling effect. of the formulations
being chlorates.
----------------------------------------------------------------------------------------------------------------
Currently, manufacturers may submit low hazard fireworks approvals
through the PHMSA portal, email, or mail, although all applications in
the past several years have been through the PHMSA portal. A
manufacturer follows a multi-step process to receive a certificate
using PHMSA's automated process for review of low hazard fireworks.
First, the applicant must register with PHMSA to create an account to
use the PHMSA portal and provide the following contact information:
company name, contact person, title, address, phone, and email address;
manufacturing location; and U.S. agent (if applicable), address, phone,
and email Address. A unique profile is created for each applicant based
on their email address, which allows repeated access. If already
registered with the PHMSA portal, persons must ensure all necessary
information is provided to allow for self-certification. Applicants are
required to create complex passwords in accordance with DOT's password
requirements.
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\11\ This column describes the chemical composition weight
limits per tube and whether reports are permitted.
---------------------------------------------------------------------------
Then, the applicant must provide specific information about a
device and certify the construction, chemical composition, and
packaging are in accordance with the HMR. This step requires the
applicant to respond to the following questions:
What is the name and/or product code of the device? (Must
be unique.)
What is the category of the ground device? (There will be
a drop down menu with the 17 authorized ground devices.)
What is the maximum weight in grams of chemical
composition in the device?
Does the device contain a report? (List how many reports.)
What is the maximum weight in milligrams of any single
report in the device?
What is the total report weight in milligrams in the
device?
Did the device pass a thermal stability test?
Does the device comply with the Permitted and Restricted
Chemicals Table found in the APA Standard 87-1A, Appendix 1, currently
incorporated by reference in Sec. 173.64?
Does the device use a safety fuse for ignition?
Does the device meet one of the descriptions listed in
Sec. 173.64?
Do you certify the device will be manufactured and
transported in accordance with all the statements you attested to
above?
Finally, the chemical composition and diagram of the ground device
must be entered into and uploaded to the PHMSA portal. A certificate
will be issued for each device following the successful completion of
the process. The certificate will contain the unique alphanumeric
certification number described above.
Novelty Devices
Similarly, PHMSA proposes that novelty devices (i.e., novelties)
certified using the PHMSA portal as conforming to the construction,
formulation, and packaging requirements in revised Sec. 173.64 will be
authorized for transport and not subject to further regulation except
for air transport. Although these novelty devices are considered
Division 1.4 fireworks, consistent with the guidance discussed in
Section I.A and as a condition for self-certification, novelty devices
will be classed for transport as ``UN3178, Flammable solid, inorganic,
n.o.s. (Novelties), 4.1, PG II,'' when transported internationally or
by
[[Page 83520]]
air. Seven novelties will be eligible for this new certification
process: Booby Trap/Pull Apart, Novelty Flitter Sparkler, Party Popper,
Novelty Snake, Snapper, Novelty Wire Sparkler or Novelty Dipped Stick,
and Novelty Smoke Device. Therefore, manufacturers may receive a
certification for international transportation when it is required.
Consistent with the 2015 guidance document, PHMSA considers certain
novelties--identified in this NPRM as excepted from further
regulation--as explosives under the HMR, subject to certain
transportation conditions. However, PHMSA acknowledges that this
exception is unique to the United States and complicates transportation
of these fireworks into or out of the United States. Therefore, to
facilitate international transportation of novelties, PHMSA proposes to
issue a unique identifier number (FW number) as part of the automated
self-certification process. This process facilitates the certification
process and movement of novelty devices outside of the United States
where they are classified the same way but not offered the same
exceptions.
Novelties must comply with both the general and specific
requirements for manufacture and packaging as provided in the table of
Proposed Criteria for Novelties. The proposed general requirements for
novelty devices are as follows:
Devices that do not list specific chemical restrictions
must use chemicals in conformance with the permitted and restricted
chemical table in the APA Standard 87-1A, Appendix 1, incorporated by
reference in Sec. 173.64. The 2018 edition is currently incorporated
by reference. Note that all chemical specifications in the table are
maximum limits.
No reports are permitted in novelties.
Smoke devices must be initiated by a fuse.
Devices must be finished and packaged in the inner
packagings.
All novelties must successfully pass a thermal stability
test specified in Sec. 173.64(a)(2).
Each device must be marked with the alphanumeric PHMSA-
assigned certification number (FW number), followed by the year and
month issued, and a sequential number based on order of issuance that
year (e.g., FWYYYYMMSSSS). If the device is too small, the package that
contains the device must display the certification number.
The specific requirements for each of the seven novelty types is as
follows:
Proposed Criteria for Novelties
----------------------------------------------------------------------------------------------------------------
Novelty Definition Specifications Special conditions
----------------------------------------------------------------------------------------------------------------
Booby Trap/Pull Apart................ Device that is actuated 0.016 total grams of Inner packages must not
by means of friction. chemical composition, contain more than 12
Pulling a string or which is limited to devices.
strings apart barium, potassium, and/
activates the device, or sodium chlorate
producing a noise with red phosphorus.
effect.
Novelty Flitter Sparkler............. Consists of a paper or 5 total grams of Inner packages must not
cardboard tube chemical composition, contain more than 8
attached to a stick or with no reports devices, and an
wire. Upon ignition, permitted. ignition fuse is
the device produces a Formulations permitted.
shower of sparks, a containing chlorates
colored flame, and/or are limited to 4 grams
a crackling effect. with no more than 15
percent of the
formulation being
chlorates.
Party Poppers........................ Device that is actuated 0.016 total grams of Inner packages must not
by means of friction. chemical composition, contain more than 72
Pulling a string or which is limited to devices.
trigger activates the barium, potassium, and/
device, producing a or sodium chlorate
noise effect and with red phosphorus.
releasing paper
streamers or confetti.
Common examples
resemble champagne
bottles and toy
pistols.
Novelty Snakes and Glow-Worms........ Consists of pressed 2 total grams of Inner packaging must
pellet of pyrotechnic chemical composition. not contain more than
composition that upon Only formulations of 25 devices
ignition, produce a nitrated asphalt,
snake-like ash that asphaltum, bitumen,
expands in length as pitch, and/or tar with
the composition is an oxidizer (with or
consumed. without a binder) are
permitted.
Snappers............................. Consists of small, 0.001 total grams of Inner packages must not
paper-wrapped items. silver fulminate contain more than 50
When dropped, the coated on small bits devices with sawdust
device activates, of sand or gravel. or other impact
producing a noise absorbing materials.
effect.
Novelty Wire Sparkler or Novelty Consists of a metal 25 total grams of Inner packages must not
Dipped Stick. wire or wood dowel chemical composition, contain more than 8
coated with a chemical with no reports devices.
composition. Upon permitted.
ignition, the device Formulations
produces a shower of containing
sparks, a colored perchlorates are
flame, and/or a limited to 5 grams.
crackling effect. Formulations
containing chlorates
are limited to 4 grams
with no more than 15
percent of the
formulations being
chlorates.
[[Page 83521]]
Novelty Smoke Device................. Consists of a paper or 5 total grams of Inner packages must not
cardboard tube that chemical composition, contain more than 72
upon ignition, emits with no reports devices.
smoke as the only permitted. All
effect. mixtures containing a
chlorate must contain
an equal amount or
greater amount of a
carbonate or
bicarbonate (e.g.
calcium carbonate,
sodium bicarbonate).
----------------------------------------------------------------------------------------------------------------
Novelties must be in inner packagings that must be further packed
in strong outer packagings. The packages must conform to the
requirements of Sec. 173.24. The maximum gross weight of a completed
package may not exceed 30 kilograms (66 pounds). Additionally, each
outer package, and an overpack if used, must be plainly marked with
``NOVELTIES, IN CONFORMANCE WITH Sec. 173.64, NOT REGULATED, EXCEPT
WHEN TRANSPORTED BY AIR.'' When novelties are transported by air, they
must be classed and described as ``UN3178, Flammable solid, inorganic,
n.o.s. (Novelties), 4.1, PG II,'' and packaged for transport
accordingly.
Similar to ground devices, an applicant will follow a multi-step
process to self-certify using PHMSA's automated process for review of
low hazard fireworks. First, the applicant must register with PHMSA to
create an account for use of the PHMSA portal and provide the following
contact information: company name, contact person, title, address,
phone, and email address; manufacturing location; and U.S. agent (if
applicable), address, phone, and email address. A unique profile is
created for each applicant based on their email address, which allows
repeated access. If already registered with the PHMSA portal, persons
must ensure all necessary information is provided to allow self-
certification. Applicants are required to create complex passwords in
accordance with DOT's password requirements.
Then, the applicant must provide the specific information about a
novelty and certify that the construction, chemical composition, and
packaging are in accordance with the HMR. This step requires the
applicant to respond to the following questions:
What is the name and/or product code of the device? (Must
be unique.)
What is the category of the novelty? (There will be a
drop-down menu with the seven authorized novelties.)
What is the maximum weight in grams of chemical
composition in the device?
Did the device pass the thermal stability test described
in 49 CFR 173.64(a)(2)?
Does the device comply with the Permitted and Restricted
Chemicals Table found in the APA Standard 87-1A, Appendix 1, currently
incorporated by reference in Sec. 173.64?
Does the novelty comply with the specific restrictions
listed in the Table of Authorized Novelty Devices and Specifications?
Does the device use a safety fuse for ignition?
Does the novelty meet a device description listed in Sec.
173.64?
Do you certify the device will be manufactured and
transported in accordance with all the statements attested to above?
Finally, the chemical composition and diagram must be entered into
and uploaded to the PHMSA portal. A certificate will then be issued for
each novelty following the successful completion of the process. The
certificate will contain the unique alphanumeric certification number
described above. The certificate will indicate the description and
classification of the device as ``UN3178, Flammable solid, inorganic,
n.o.s. (Novelties), 4.1, PG II'' for international transportation and
domestic air transportation, and that it is not regulated as a Class 1
explosive when transported domestically by vessel, highway, or rail.
Fireworks Identification Scheme
As a baseline, fireworks must be approved and assigned an
explosives approval number by PHMSA (EX number) based on actual testing
and classification prior to transportation to, from, and within the
United States. However, Sec. 173.64 permits Division 1.3G and 1.4G
fireworks to be approved without prior examination based on certain
conditions, including compliance with the provisions of the 2018 APA
Standards 87-1A, 1B, and 1C, which are incorporated by reference in
Sec. 171.7. Further, Sec. 173.65 permits--in lieu of an approval--
Division 1.4G consumer fireworks (as defined in Sec. 171.8) to be
certified by a DOT-approved FCA. After the FCA reviews the consumer
fireworks application and certifies it meets the requirements, the FCA
assigns an FC number.
However, in this NPRM, PHMSA is proposing to streamline the process
for approval or certification of low hazard fireworks by allowing self-
certification using an online application in the PHMSA portal with an
automated process for review and issuance of a certification. This
automated process may be used for the low hazard fireworks identified
in this rulemaking in lieu of the current process and would no longer
require PHMSA or FCA personnel to conduct time-consuming reviews of
each application or impose a cost on manufacturers who opt to use an
FCA to certify these fireworks. Manufacturers of fireworks that meet
the required criteria for the construction, formulation, and packaging
of these low hazard fireworks--specifically discussed in Section II.
Proposed Amendments--would certify compliance with specified conditions
and limitations online and receive a certificate with a unique
identifier number (FW number) for each firework type. The FW number
will identify a low hazard firework that has been certified through the
newly proposed automated approval process as specified in Sec. 173.64.
An example of an FW number would be ``FW2023100001'' consisting of the
letters FW, followed by the year and month issued, and a sequential
number based on order of issuance that year.
Given the long history and wide recognition of the EX and FC
numbering scheme, PHMSA seeks specific comments on the supply chain
implications, the economic impact and safety concerns associated with
the proposed FW numbering system, as well as comments on how to
implement the changes if they are adopted. For example, will the use of
different alpha designators (i.e., EX, FC and FW) pose complications or
confusion within the
[[Page 83522]]
transportation system? If so, please provide a suggested alternative to
FW.
B. Authorizing the Self-Classification of Tracer Ammunition
Section 173.56(h) authorizes self-classification of certain types
of small arms cartridges into Division 1.4S, provided certain
conditions are met. In particular, Sec. 173.56(h)(3) authorizes
ammunition with inert projectile or blank ammunition. Tracer ammunition
utilizes a small amount of pyrotechnic composition to provide visible
light upon exit from a gun barrel. Due to the presence of the
pyrotechnic composition, it is unclear whether tracer ammunition would
qualify as an ``inert'' projectile. However, there is a negligible
quantity of pyrotechnic composition in tracer ammunition compared to
the quantities of pyrotechnic material contained within the projectile
itself, and its presence neither increases the hazard in a bonfire test
nor makes unintentional initiation any more likely.
The difference in hazard between inert projectile cartridges and
the same cartridges with a small amount of pyrotechnic composition is
negligible. Furthermore, there are no additional concerns related to
tracer ammunition that justify exclusion from the self-classification
provision of Sec. 173.56(h)(3). Therefore, PHMSA proposes to amend
Sec. 173.56(h)(3) to also authorize self-classification of tracer
ammunition that meets all other criteria outlined in Sec.
173.56(h)(3).
C. Amending the Approvals Process
PHMSA currently provides several options for submittal of
applications for approvals including mail, email, fax, and the PHMSA
portal, although this latter method is not codified as an option. As
such, PHMSA proposes to amend 49 CFR 107.705 to include the PHMSA
portal as a submittal option for all approvals. Furthermore, PHMSA
proposes to make the PHMSA portal the only method for submittal and
acceptance of explosives approval applications, and to remove current
options to submit those applications via mail, email, or fax.
Transitioning to an all-electronic system will improve efficiency.
Delays often occur when PHMSA personnel must transcribe application
information into the portal database due to incomplete data, inability
to read handwritten materials, and so forth. Where missing data or
uncertainties are discovered, PHMSA personnel must follow up with the
applicant or otherwise reject an application, which causes further
delays. Electronic submissions will improve efficiency for the
applicant on the front end (data entry) and for PHMSA on the back end
(review and issuance of approval). The PHMSA portal provides online
access to PHMSA services, creating a single source for all Hazardous
Materials explosives applications and data. Persons need only to
register to create an account and access the portal.
Finally, PHMSA proposes to add a new paragraph 49 CFR 107.705(e) to
allow approval holders to request termination of approvals, and to
amend 49 CFR 107.713(c) to clarify that when an approval holder
voluntarily requests termination, PHMSA is not required to issue a show
cause letter.
IV. Section-by-Section Review
The following is a section-by-section review of the proposed
amendments to the HMR.
Part 107
Section 107.705
Section 107.705 prescribes the requirements for submitting
registrations, reports, and applications for approval. PHMSA proposes
revising paragraph (a)(1) to specify the PHMSA portal may also be used
to file all approval applications with PHMSA and is the only authorized
method for submitting explosives approval applications, and proposes
removing options to submit those explosives applications via mail,
email, or fax for all explosives approvals.
Section 107.713
Section 107.713 prescribes procedures for the issuance,
modification, and termination of approvals required by the HMR. PHMSA
proposes to revise 49 CFR 107.713(c) introductory text to indicate a
PHMSA show cause letter is not necessary for voluntary termination of
an approval; and add a new paragraph (e) to clarify approval holders
may voluntarily request termination of an approval. PHMSA will then
issue a termination letter, rather than a show cause letter.
Part 171
Section 171.8
Section 171.8 provides definitions and abbreviations. PHMSA
proposes to define the term ``FW number'' as a number preceded by the
prefix ``FW,'' assigned by PHMSA to a Division 1.4G Consumer firework
device that has been certified under the provisions of Sec. 173.64.
Part 173
Section 173.56
Section 173.56 prescribes the procedures for classification and
approval of new explosives. Small arms cartridges meeting the criteria
in paragraph (h) may be self-classified as Division 1.4S by the
manufacturer. PHMSA proposes to modify Sec. 173.56(h)(3) to provide
clarity that tracer ammunition with inert projectiles is also eligible
for self-classification as a Division 1.4S material provided all other
criteria outlined in Sec. 173.56(h) are met. This proposal will
maintain the current level of safety with the HMR by ensuring proper
understanding of what types of explosives may be classified or self-
classified.
Section 173.59
Section 173.59 provides informational descriptions of terms for
explosives. PHMSA is adding a separate term and description for ``low
hazard fireworks.'' This proposal will maintain the current level of
safety with the HMR by ensuring proper understanding of what explosives
may qualify for the low hazard fireworks exceptions.
Section 173.64
Section 173.64 prescribes classification and approval exceptions
from the standard explosives approval process for Division 1.3 and 1.4
fireworks. PHMSA proposes to revise Sec. 173.64 to include further
exceptions for low hazard consumer fireworks that qualify for self-
certification. Specifically, paragraph (b) will outline criteria for
self-certification of certain ground and novelty devices as Division
1.4 fireworks. Seven novelties will be eligible for self-certification
and exception from the HMR, and 17 ground devices will be eligible for
self-certification and classification as Division 1.4G fireworks. PHMSA
also proposes to make some editorial changes to paragraph (a)
consistent with revision to paragraph (b), such as adding a title to
paragraph (a) and clarifying further the reference to Sec. 173.65 for
certification of Division 1.4G consumer fireworks by an FCA. This
proposal will maintain the current level of safety with the HMR by
ensuring proper understanding of which ground and novelty devices may
qualify for this exception.
V. Regulatory Analyses and Notices
A. Statutory/Legal Authority
This NPRM is published under the authority of Federal Hazardous
Materials Transportation Act (HMTA; 49 U.S.C. 5101-5127). Section
5103(b)
[[Page 83523]]
of the HMTA authorizes the Secretary of Transportation to prescribe
regulations for the safe transportation of hazardous materials (HAZMAT)
in intrastate, interstate, and foreign commerce. The Secretary has
delegated the authority granted in the HMTA to the PHMSA Administrator
at 49 CFR 1.97(b).
B. Executive Orders 12866 and 14094; DOT Regulatory Policies and
Procedures
Executive Order 12866 (``Regulatory Planning and Review''), as
amended by Executive Order 14094 (``Modernizing Regulatory Review''
\12\), requires agencies to regulate in the ``most cost-effective
manner,'' to make a ``reasoned determination that the benefits of the
intended regulation justify its costs,'' and to develop regulations
that ``impose the least burden on society.'' Similarly, DOT Order
2100.6A (``Policies and Procedures for Rulemakings'') requires PHMSA
rulemaking actions include ``an assessment of the potential benefits,
costs, and other important impacts of the regulatory action,'' and (to
the extent practicable) the benefits, costs, and any significant
distributional impacts, including any environmental impacts.
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\12\ 88 FR 21879 (Apr. 11, 2023).
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Executive Order 12866 and DOT Order 2100.6A require PHMSA submit
``significant regulatory actions'' to the Office of Management and
Budget (OMB) for review. This rulemaking is not considered a
significant regulatory action under section 3(f) of Executive Order
12866 (as amended by Executive Order 14094) and therefore, was not
formally reviewed by OMB. This rulemaking is also not considered a
significant rule under DOT Order 2100.6A.
The following is a brief summary of costs, savings, and net
benefits of some of the amendments proposed in this notice. PHMSA has
developed a more detailed analysis of these costs and benefits in the
PRIA, a copy of which has been placed in the docket. PHMSA seeks public
comment on its proposed revisions to the HMR, and the preliminary cost
and benefit analyses in the PRIA.
PHMSA estimates the costs associated with permitting self-
certification of low-hazard fireworks are minimal. The actual standards
required by the HMR for low-hazard fireworks are not affected by this
rule change, merely allowing manufacturers to self-certify that the
products meet those standards. PHMSA estimates the self-certifying
application process for manufacturers will not add any additional time
burdens as the approval information required for an approval will not
be affected. PHMSA estimates approvals handled by PHMSA take
approximately two hours per application. Of that time 30 minutes are
required for data entry, 60 minutes for managerial review, and another
30 minutes for signature review and approval. Allowing self-
classification, therefore, would save PHMSA 425 labor hours annually.
PHMSA emphasizes the proposed amendment for tracer ammunition is
merely a formal codification and adoption of a policy in place since
2002. The proposed change would make the policy's definition into a
formal regulation. Considering the long-standing nature of the 2002
policy, there would be minimal burdens to formally adopting the policy
into the HMR.
C. Executive Order 13132
PHMSA analyzed this rulemaking in accordance with the principles
and criteria contained in Executive Order 13132 (Federalism) \13\ and
the Presidential Memorandum (Preemption).\14\ Executive Order 13132
requires agencies to assure meaningful and timely input by state and
local officials in developing regulatory policies that may have
``substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.''
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\13\ 64 FR 43255 (Aug. 10, 1999).
\14\ 74 FR 24693 (May 22, 2009).
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The proposed rule would not have substantial direct effects on the
States, the relationship between the national government and the
States, or the distribution of power and responsibilities among the
various levels of government. The HMTA contains an express preemption
provision at 49 U.S.C. 5125(a) that preempts State, local, and Tribal
requirements if: (1) compliance with such requirement makes compliance
with the DOT regulations issued under the authority of the HMTA not
possible; or (2) compliance with such requirement is an obstacle to
carrying out a regulation prescribed under the authority of the HMTA.
The HMTA also contains an express preemption provision at 49 U.S.C.
5125(b) that preempts State, local, and Tribal requirements on certain
covered subjects, unless the non-Federal requirements are
``substantively the same'' as the Federal requirements, including the
following subjects:
The designation, description, and classification of
hazardous materials.
The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials.
The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
contents, and placement of those documents.
The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material.
The design, manufacture, fabrication, marking,
maintenance, recondition, repair, or testing of a packaging or
container represented, marked, certified, or sold as qualified for use
in transporting hazardous material.
This proposed rule addresses covered subject items (1) and (2) and
would preempt state, local, and tribal requirements not meeting the
``substantively the same'' standard. Any preemption results directly
from operation of 49 U.S.C. 5125. In addition, in this instance, the
preemptive effect of the proposed rule is limited to the minimum level
necessary to achieve the objectives of the HMTA under which the final
rule is promulgated. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply.
D. Executive Order 13175
PHMSA analyzed this rulemaking in accordance with the principles
and criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments'') \15\ and DOT Order
5301.1A (``Department of Transportation Tribal Consultation Policy and
Procedures''). Executive Order 13175 and DOT Order 5301.1A require DOT
Operating Administrations to assure meaningful and timely input from
Native American tribal government representatives in developing rules
that significantly or uniquely affect tribal communities by imposing
``substantial direct compliance costs'' or ``substantial direct
effects'' on such communities, or the relationship and distribution of
power between the Federal Government and Native American Tribes.
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\15\ 65 FR 67249 (Nov. 9, 2000).
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PHMSA assessed the impact of the rulemaking and determined that it
would not significantly or uniquely affect Tribal communities or Native
American Tribal governments. The changes to the hazardous materials
program procedures and HMR proposed in this NPRM would have broad,
national scope. PHMSA does not expect this rulemaking would
significantly or uniquely affect Tribal communities,
[[Page 83524]]
impose substantial compliance costs on Native American Tribal
governments, or mandate Tribal action. And because PHMSA expects the
rulemaking would not adversely affect the safe transportation of
hazardous materials generally, PHMSA does not expect it would entail
disproportionately high adverse risks for tribal communities. For these
reasons, the funding and consultation requirements of Executive Order
13175 and DOT Order 5301.1A apply. However, PHMSA solicits comment from
Native American tribal governments and communities on potential impacts
of the proposed rulemaking.
E. Regulatory Flexibility Act and Executive Order 13272
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
agencies to consider whether a rulemaking would have a ``significant
economic impact on a substantial number of small entities'' to include
small businesses; not-for-profit organizations that are independently
owned and operated and are not dominant in their fields; and
governmental jurisdictions with populations under 50,000. The
Regulatory Flexibility Act directs agencies to establish exceptions and
differing compliance standards for small businesses, where possible to
do so and still meet the objectives of applicable regulatory statutes.
Executive Order 13272 (``Proper Consideration of Small Entities in
Agency Rulemaking'') \16\ requires agencies to establish procedures and
policies to promote compliance with the Regulatory Flexibility Act and
to ``thoroughly review draft rules to assess and take appropriate
account of the potential impact'' of the rules on small businesses,
governmental jurisdictions, and small organizations. The DOT posts its
implementing guidance on a dedicated web page.\17\
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\16\ 67 FR 53461 (Aug. 16, 2002).
\17\ DOT, ``Rulemaking Requirements Related to Small Entities,''
https://www.transportation.gov/regulations/rulemaking-requirements-concerning-small-entities (last accessed June 17, 2021).
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This proposed rule has been developed in accordance with Executive
Order 13272 and DOT's procedures and policies to promote compliance
with the Regulatory Flexibility Act to ensure that potential impacts on
small entities are considered properly. As explained above, this
proposed rule facilitates the transportation of hazardous materials by
streamlining the regulatory requirements for energetics manufacturers
and shippers while maintaining the current level of safety for
transportation of these items. Specifically, it proposes to amend the
classification and approval process of certain low-hazard Class 1
explosive materials (i.e., fireworks) and clarify classification
eligibility for ammunition with inert projectile that has a pyrotechnic
coating (i.e., tracers). Finally, this rulemaking proposes to require
use of the PHMSA portal, an online application, as the sole method to
submit explosives approval applications.
Therefore, PHMSA expects that these amendments will not, if
adopted, have a significant economic impact on a substantial number of
small entities. However, PHMSA solicits comments on the anticipated
economic impacts to small entities.
F. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.),
no person is required to respond to any information collection unless
it has been approved by OMB and displays a valid OMB control number.
Pursuant to 44 U.S.C. 3506(c)(2)(B) and 5 CFR 1320.8(d), PHMSA must
provide interested members of the public and affected agencies an
opportunity to comment on information and recordkeeping requests.
PHMSA has analyzed this NPRM in accordance with the Paperwork
Reduction Act. PHMSA currently accounts for information collection and
recordkeeping burdens under OMB Control Number 2137-0057 ``Approvals
for Hazardous Materials.'' In this NPRM, PHMSA proposes to revise Sec.
173.64 applicable to low hazard fireworks that may impact the burden
accounted for in OMB Control Number 2137-0057. The proposed addition in
Sec. 173.64 would require manufacturers to provide information in
association with pursuing allowance for the self-certification of
certain ground and novelty device fireworks as low hazard fireworks for
purposes of transportation. PHMSA analyzed this proposal and expects
the impact to be negligible as the information is the same information
currently required by the HMR, just in a different format.
PHMSA specifically requests comments on the information collection
and recordkeeping burdens associated with developing, implementing, and
maintaining these proposed requirements. Address written comments to
the DOT Docket Operations Office as identified in the ADDRESSES section
of this rulemaking. Comments regarding information collection burdens
must be received prior to the close of the comment period identified in
the DATES section of this rulemaking. In addition, you may submit
comments specifically related to the information collection burden to
the PHMSA Desk Officer, Office of Management and Budget, at fax number
202-395-674. Requests for a copy of this information collection should
be directed to Steven Andrews, Standards and Rulemaking Division (PHH-
10), Pipeline and Hazardous Materials Safety Administration, 1200 New
Jersey Avenue SE, Washington, DC 20590-0001. If these proposed
requirements are adopted in a final rule, PHMSA will submit the revised
information collection and recordkeeping requirements to OMB for
approval.
G. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et
seq.) requires agencies to assess the effects of Federal regulatory
actions on State, local, and Tribal Governments, and the private
sector. For any NPRM or final rule that includes a Federal mandate that
may result in the expenditure by State, local, or Tribal Governments,
or by the private sector of $100 million or more in 1996 dollars in any
given year, the agency must prepare, amongst other things, a written
statement that qualitatively and quantitatively assesses the costs and
benefits of the Federal mandate.
As explained in the PRIA, available for review in the docket, this
proposed rule does not impose unfunded mandates under the UMRA. As
explained in the PRIA, it is not expected to result in costs of $100
million or more in 1996 dollars to either State, local, or Tribal
Governments, or to the private sector in any one year. Therefore, the
analytical requirements of UMRA do not apply.
H. Draft Environmental Assessment
The National Environmental Policy Act of 1969 (NEPA), as amended
(42 U.S.C. 4321-4335),\18\ requires Federal agencies to consider the
environmental impacts of their actions in the decision-making process.
The purpose and function of NEPA is satisfied if Federal agencies have
considered relevant environmental information, and the public has been
informed regarding the decision-making process. Agencies must prepare
an environmental assessment (EA) for a proposed action that is not
likely to have significant effects or when significance is unknown, and
prepare a FONSI if, based on the EA, the agency determines not to
prepare an EIS because the proposed action will not
[[Page 83525]]
have significant effects. In accordance with these requirements, an
agency's EA must discuss: (1) the need for the action; (2) the
alternatives considered; (3) the environmental impacts of the proposed
action and alternatives; and (4) a listing of the agencies and persons
consulted before providing evidence for determining a FONSI. The draft
EA (DEA) and proposed FONSI for the proposed action in this rulemaking
are as follows. This DEA incorporates by reference the analysis
included in the preamble text above.
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\18\ Also at 40 CFR parts 1501 to 1508.
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1. Need for the Action
The changes in the explosives approval process, especially for
classification and approval of low hazard fireworks, are needed to
improve efficiency and provide regulatory clarification for offerors
and carriers.
2. Alternatives Considered
No Action Alternative
Under the no action alternative, the current process for acquiring
explosives approvals by hardcopy or email submission of application
documents would continue. Additionally, stakeholders would continue to
rely on previously issued guidance for classification and exception
from regulation for certain low hazards fireworks. Finally, it would
remain ambiguous whether tracer ammunition is eligible for self-
classification as a Division 1.4S explosive (i.e., the small arms
cartridges exceptions).
Proposed Action Alternative--Explosives Approval Program and Exceptions
for Divisions 1.3 and 1.4 Consumer Fireworks
Under this alternative, PHMSA would implement the proposed
amendments of this rule as fully addressed in the preamble and
regulatory text sections of this NPRM. However, a concise summary of
the proposed amendments include the following:
(1) Establishing exceptions for ground and novelty firework
devices.
(2) Authorizing the self-classification of tracer ammunition.
(3) Requiring electronic submittal of explosives approval
applications to include reference to the PHMSA portal, and to authorize
electronic submittal for all required approvals.
3. Environmental Impacts of Proposed Action and Alternatives
No Action Alternative
PHMSA expects the no action alternative to have no new impact on
the environment as the status quo would remain in place. Explosives
approval applications, including those for fireworks, would continue to
be processed using all authorized filing formats currently in place,
and manufacturers would continue to work within the scope of guidance
issued by PHMSA for exceptions from regulation for low hazard
fireworks. Additionally, classification of tracer ammunition as a
Division 1.4S would remain the same but clarity on whether a
manufacturer could self-classify would remain uncodified.
Proposed Action Alternative--Explosives Approval Program and Exceptions
for Divisions 1.3 and 1.4 Consumer Fireworks
Under this alternative, PHMSA would implement the proposed
amendments of this rule as fully addressed in the preamble and
regulatory text sections of this NPRM. The proposed amended regulatory
text would allow for a streamlining of procedural requirements for the
transportation of low hazard ground and novelty firework devices.
Specifically, PHMSA would allow an automated process within the PHMSA
portal for self-certification, review of the information provided, and
issuance of a certificate with a unique identification (i.e., FW
number). This process would eliminate the need for firsthand review by
PHMSA personnel when compliance is certified by the applicant. The
devices would still be subject to the same substantive testing and
materials requirements, including construction, formulation, and
packaging. Similarly, this NPRM proposes to clarify and codify existing
guidance that self-certification is authorized for inert projectile
cartridges coated with tracer composition and may be self-classified as
a Division 1.4S material provided all other criteria outlined in Sec.
173.56(h) are met. Although the proposal would reduce the hours PHMSA
personnel spend reviewing documents, the automated process is designed
to similarly ensure compliance. Furthermore, PHMSA will maintain
oversight of the automated process for low hazard fireworks through
PHMSA's QA/QC review program.
PHMSA also notes the difficulty in quantifying any environmental
impact of requiring electronic processing of information; codifying
approval and exception requirements for low hazard fireworks; and
clarifying authorized self-classification of tracer ammunition. The
changes proposed in this notice do not impact whether or not explosives
are manufactured and transported, but rather how explosives approval
applications are processed and how certain explosives may be
classified. The process is already occurring and the changes proposed
would primarily be about transitioning to an electronic format. For the
above reasons, PHMSA expects the proposed action alternative to have no
impact on the human environment, including public safety.
4. Agencies and Persons Consulted
PHMSA coordinated with the Federal Aviation Administration, the
Federal Motor Carrier Safety Administration, the Federal Railroad
Administration, and the U.S. Coast Guard in the development of this
proposed rule.
5. Environmental Justice
Executive Order 12898 (``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations'') \19\
directs Federal agencies to take appropriate and necessary steps to
identify and address disproportionately high and adverse effects of
Federal actions on the health or environment of minority and low-income
populations to the greatest extent practicable and permitted by law.
DOT Order 5610.2C (``Department of Transportation Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations'') establishes departmental procedures for effectuating
Executive Order 12898 promoting the principles of environmental justice
through full consideration of environmental justice principles
throughout planning and decision-making processes in the development of
programs, policies, and activities--including PHMSA rulemaking.
---------------------------------------------------------------------------
\19\ 59 FR 7629 (Feb. 16, 1994).
---------------------------------------------------------------------------
PHMSA has evaluated this proposed rule under Executive Order 12898
and DOT Order 5610.2C and preliminarily determined that it would not
cause disproportionately high and adverse human health and
environmental effects on minority and low-income populations. The
rulemaking is neither directed toward a particular population, region,
or community, nor is it expected to adversely impact any particular
population, region, or community. And insofar as the rulemaking would
not adversely affect the safe transportation of hazardous materials
generally, the proposed revisions would not entail disproportionately
high adverse risks for minority and low-income populations. This
preliminary determination is consistent with the recent Executive Order
14096 (``Revitalizing Our Nation's Commitment to Environmental Justice
for All''),\20\ by achieving several goals,
[[Page 83526]]
including continuing to deepen the Administration's whole of government
approach to environmental justice and to better protect overburdened
communities from pollution and environmental harms.
---------------------------------------------------------------------------
\20\ 88 FR 25251 (Apr. 26, 2023).
---------------------------------------------------------------------------
6. Proposed Finding of No Significant Impact
As discussed in this DEA as well as Section II of the notice, the
proposed actions of this rulemaking would introduce efficiencies to the
explosives approval process and the way certain low hazard Class 1
explosive materials are authorized for transportation, and provide
clarity on whether tracer ammunition for small arms cartridges may be
classed as Division 1.4S material without the explosives approval
process. The proposed actions would not cause environmental impact
because the changes proposed are procedural and not substantive, and no
reduction in compliance with HMR requirements are anticipated. There
may be a negligible impact by changing from paper documents to reliance
on electronic systems. Nothing is different between the approval and
transport of explosives and low hazard fireworks under the current
system and under the proposed system other than how applications are
processed. Similarly, nothing is different between the current
classification of tracer ammunition and the proposed action except how
classification is determined (i.e., either by formalized approval
classification or by self-classification). Therefore, PHMSA proposes
that, if adopted, this rulemaking will result in no significant impact
to the human environment. PHMSA welcomes feedback related to
environmental impacts that may result if the proposed requirements are
adopted, as well possible alternatives and their environmental impacts.
I. Privacy Act
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform any amendments to the hazardous materials
program procedures and the HMR considered in this rulemaking. DOT posts
these comments, without edit, including any personal information the
commenter provides, to https://www.regulations.gov, as described in the
system of records notice (DOT/ALL-14 FDMS). DOT's complete Privacy Act
Statement is in the Federal Register,\21\ or on DOT's website at
https://www.dot.gov/privacy.
---------------------------------------------------------------------------
\21\ 65 FR 19477 (Apr. 11, 2000).
---------------------------------------------------------------------------
J. Executive Order 13609 and International Trade Analysis
Executive Order 13609 (``Promoting International Regulatory
Cooperation'') \22\ requires that agencies consider whether the impacts
associated with significant variations between domestic and
international regulatory approaches are unnecessary or may impair the
ability of American business to export and compete internationally. In
meeting shared challenges involving health, safety, labor, security,
environmental, and other issues, international regulatory cooperation
can identify approaches that are at least as protective as those that
are or would be adopted in the absence of such cooperation.
International regulatory cooperation can also reduce, eliminate, or
prevent unnecessary differences in regulatory requirements.
---------------------------------------------------------------------------
\22\ 77 FR 26413 (May 4, 2012).
---------------------------------------------------------------------------
Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as
amended by the Uruguay Round Agreements Act (Pub. L. 103-465),
prohibits Federal agencies from establishing any standards or engaging
in related activities that create unnecessary obstacles to the foreign
commerce of the United States. Pursuant to the Trade Agreements Act,
the establishment of standards is not considered an unnecessary
obstacle to the foreign commerce of the United States, so long as the
standards have a legitimate domestic objective, such as providing for
safety, and do not operate to exclude imports that meet this objective.
The statute also requires consideration of international standards and,
where appropriate, that they be the basis for U.S. standards.
In developing requirements to allow manufacturers to self-certify
certain fireworks as meeting criteria for transportation as low hazard
fireworks in place of acquiring an explosives approval for
transportation, PHMSA has made assurances that the process facilitates
international transport. PHMSA realizes the absence of an approval and
the associated approval number provides for domestic exception from
regulation of certain low hazard novelty fireworks, and it has assessed
the effects of the proposed rule to ensure it does not cause
unnecessary obstacles to foreign trade. In fact, the proposed rule is
expected to facilitate international trade by harmonizing U.S. and
international requirements for the transportation of hazardous
materials. The rule is expected to reduce regulatory burdens and
minimize delays arising from having to comply with divergent regulatory
requirements. This rulemaking is consistent with Executive Order 13609
and PHMSA's obligations under the Trade Agreements Act, as amended.
K. National Technology Transfer and Advancement Act
The National Technology Transfer and Advancement Act of 1995 (15
U.S.C. 272 note) directs Federal agencies to use voluntary consensus
standards in their regulatory activities unless doing so would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., specification of
materials, test methods, or performance requirements) developed or
adopted by voluntary consensus standard bodies. This NPRM involves
voluntary consensus standards, which are discussed in Section I of this
NPRM.
L. Severability
The purpose of this proposed rule is to operate holistically in
addressing a panoply of issues related to safety hazards; the
classification and approval process for certain low-hazard fireworks;
permitting small arms cartridges to include tracer ammunition; and
allowing for voluntary termination of an explosive approval by the
approval holder. However, PHMSA recognizes that certain provisions
focus on unique topics. Therefore, PHMSA preliminarily finds that the
various provisions of this proposed rule are severable and able to
function independently if severed from each other. Thus, in the event a
court were to invalidate one or more of this proposed rule's unique
provisions, the remaining provisions should stand and continue in
effect. PHMSA seeks comment on which portions of this proposed rule
should or should not be severable.
M. Cybersecurity and Executive Order 14028
Executive Order 14028 (``Improving the Nation's Cybersecurity'')
\23\ expressed the Biden-Harris Administration policy that ``the
prevention, detection, assessment, and remediation of cyber incidents
is a top priority and essential to national and economic security.''
Executive Order 14028 directed the Federal Government to improve its
efforts to identify, deter, and respond to ``persistent and
increasingly sophisticated malicious cyber campaigns.'' PHMSA has
considered the effects of this NPRM and
[[Page 83527]]
determined its regulatory amendments will not materially affect the
cybersecurity risk profile for the classification and approval process
for certain low-hazard fireworks, for small arms cartridges to include
tracer ammunition, and the transportation of hazardous materials.
---------------------------------------------------------------------------
\23\ 86 FR 26633 (May 17, 2021).
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List of Subjects
49 CFR Part 107
Administrative practice and procedure, Hazardous materials
transportation, Packaging and containers, Penalties, Reporting and
recordkeeping requirements.
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Incorporation by reference, Reporting and recordkeeping
requirements.
49 CFR Part 173
Hazardous materials transportation, Incorporation by reference,
Packaging and containers, Radioactive materials, Reporting and
recordkeeping requirements.
In consideration of the foregoing, PHMSA proposes to amend 49 CFR
chapter I as follows:
PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES
0
1. The authority citation for part 107 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 Section
4; Pub. L. 104-121 Sections 212-213; Pub. L. 104-134 Section 31001;
Pub. L. 114-74 Section 701 (28 U.S.C. 2461 note); 49 CFR 1.81 and
1.97; 33 U.S.C. 1321.
0
2. In Sec. 107.705, revise paragraph (a)(1) to read as follows:
Sec. 107.705 Registrations, reports, and applications for approval.
(a) * * *
(1) Filings. (i) Submission methods. The registration, report, or
application may be filed with the Associate Administrator for Hazardous
Materials Safety, Pipeline and Hazardous Materials Safety
Administration, U.S. Department of Transportation, East Building, 1200
New Jersey Avenue SE, Washington, DC 20590-0001. Applications may be
filed using the PHMSA portal at: https://portal.phmsa.dot.gov/ or
alternatively, may be filed with any attached supporting documentation
in an appropriate format by facsimile (fax) to: (202) 366-3753 or (202)
366-3308, or by electronic mail (email) to: [email protected].
(ii) Explosive approval applications. Filing of explosives approval
and fireworks approval applications as well as certifications of low
hazard fireworks must be submitted, and will only be accepted, using
the PHMSA portal.
* * * * *
0
3. In Sec. 107.713, revise paragraph (c) introductory text and add
paragraph (e) to read as follows:
Sec. 107.713 Approval modification, suspension or termination.
* * * * *
(c) Except as provided in paragraphs (d) and (e) of this section,
before an approval is modified, suspended, or terminated, the Associate
Administrator notifies the holder in writing of the proposed action and
the reasons for it, and provides an opportunity to show cause why the
proposed action should not be taken.
* * * * *
(e) The Associate Administrator may terminate an approval at the
request of the approval holder based on the holder's determination that
it is no longer needed. The approval holder must submit the request in
writing to the Associate Administrator using the PHMSA portal at:
https://portal.phmsa.dot.gov/.
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
0
4. The authority citation for part 171 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section
4; Pub. L. 104-134, section 31001; Pub. L. 114-74 section 701 (28
U.S.C. 2461 note); 49 CFR 1.81 and 1.97.
0
5. In Sec. 171.8, add a definition for ``FW number'' in appropriate
alphabetical sequence to read as follows:
Sec. 171.8 Definitions and abbreviations.
* * * * *
FW number means a number preceded by the prefix ``FW'', assigned by
PHMSA to a Division 1.4G Consumer firework device that has been
certified under the provisions of Sec. 173.64 of this subchapter.
* * * * *
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS
0
6. The authority citation for part 173 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.96 and
1.97.
0
7. In Sec. 173.56, revise paragraph (h)(3) to read as follows:
Sec. 173.56 New explosives--definition and procedures for
classification and approval.
* * * * *
(h) * * *
(3) Ammunition (including tracer ammunition) with inert projectile,
or blank ammunition; and
* * * * *
0
8. In Sec. 173.59, add a definition for ``Low hazard firework'' in
alphabetical order to read as follows:
Sec. 173.59 Description of terms for explosives.
* * * * *
Low hazard firework. As listed in Sec. 173.64 of this subchapter,
are pyrotechnic articles of certain chemical composition, design, and
packaging that are not designed to leave ground level, contain no
aerial components, present a low explosive hazard during
transportation, and comply with any limits and requirements found
therein. Low hazard fireworks include ground and novelty devices.
* * * * *
0
9. Revise Sec. 173.64 to read as follows:
Sec. 173.64 Exceptions for Division 1.3 and 1.4 fireworks.
(a) Classification and approval. Notwithstanding the requirements
of Sec. 173.56(b), Division 1.3 and 1.4 fireworks may be classed and
approved by the Associate Administrator without prior examination and
offered for transportation if the conditions of this paragraph (a) are
met (see Sec. 173.65 for an alternate method to approve Division 1.4G
consumer fireworks using a DOT-approved Fireworks Certification
Agency):
(1) Fireworks must be manufactured in accordance with the
applicable requirements in APA 87-1A, 87-1B, and 87-1C (IBR, see Sec.
171.7 of this subchapter).
(2) The firework device must pass a thermal stability test
conducted by a third-party laboratory or the manufacturer. The test
must be performed by maintaining the device, or a representative
prototype of a large device such as a display shell, at a temperature
of 75 [deg]C (167 [deg]F) for 48 consecutive hours. When a device
contains more than one component, those components that could be in
physical contact with each other in the finished device must be placed
in contact with each other during the thermal stability test.
(3) The manufacturer applies in writing to the Associate
Administrator following the applicable requirements in APA 87-1A, 87-
1B, and 87-1C and is notified in writing by the Associate Administrator
that the fireworks have
[[Page 83528]]
been classed, approved, and assigned an EX number. Each application
must be complete and include all relevant background data and copies of
all applicable drawings, test results, and any other pertinent
information on each device for which approval is being requested. The
manufacturer must sign the application and certify that the device for
which approval is requested conforms to the appropriate APA Standard,
that the descriptions and technical information contained in the
application are complete and accurate, and, with respect to APA 87-1A,
that no duplicate application has been submitted to a fireworks
certification agency. If the application is denied, the manufacturer
will be notified in writing of the reasons for the denial. The
Associate Administrator may require that the fireworks be examined by
an agency listed in Sec. 173.56(b)(1) of this part.
(b) Additional exceptions for low hazard Division 1.4 consumer
fireworks. Low hazard fireworks are pyrotechnic articles of certain
chemical composition, design, and packaging such that they present a
low explosive hazard during transportation. Low hazard ground device
fireworks listed in the table to paragraph (b)(2) of this section and
meeting the specified conditions and limitations are eligible for self-
classification and transport as UN0336, Fireworks, Division 1.4G.
Further, certain low hazard novelty fireworks listed in the table to
paragraph (b)(3) of this section meeting the specified conditions and
limitations may be excepted from the requirements of this subchapter as
a Class 1 explosive material. Low hazard fireworks are not subject to
the explosives approval requirements of Sec. 173.56 or the DOT-
approved Fireworks Certification Agency requirements of Sec. 173.65.
(1) General requirements. No person may manufacture and offer for
transport a low hazard firework unless compliance with requirements of
this paragraph (b) has been certified with the Associate Administrator.
No person may accept for transport a low hazard firework that has not
been certified as specified in this section. If the person certifying
compliance is not a resident of the United States, the person must
designate an agent for service in accordance with Sec. 105.40 of this
chapter. Additionally, low hazard fireworks:
(i) Must successfully pass a thermal stability test as specified in
paragraph (a)(2) of this section;
(ii) May not be transported as a component part for another
firework or explosive; and
(iii) Must be marked with an FW number issued by the Associate
Administrator. If the firework is too small for the marking, the outer
package of the fireworks must be marked with the FW number.
(2) Requirements specific to ground firework devices. (i) Ground
devices must use chemicals in conformance with the permitted and
restricted chemical list in APA 87-1A, Appendix 1.
(ii) When permitted, all reports are limited to 50 mg of
composition per report.
(iii) Ground devices must be initiated by a fuse; however, a fuse
is not required for the following types: flitter sparklers, wire or
dipped sparklers, fountain (nitrocellulose), and snakes (glow worms).
(iv) Authorized ground devices, and their descriptions,
specifications, and special conditions for transport are set forth as
follows:
Table 1 to Paragraph (b)(2)--Authorized Ground Devices and Specifications
----------------------------------------------------------------------------------------------------------------
Type Description Specification Special conditions
----------------------------------------------------------------------------------------------------------------
Chaser............................... Consists of a paper or 20 grams total of None.
cardboard tube, which chemical composition,
vents out its fuse with multiple reports
hole. permitted (each report
limited to 50
milligrams).
Crackling Ball....................... Consists of a spherical 20 total grams of Inner packaging cannot
ball that contains chemical composition, exceed 72 grams of
small granules of with no reports composition.
chemical composition permitted.
that upon ignition
produce sparks and/or
a crackling effect.
Crackling Strip...................... Consists of small 20 total grams of Inner packaging cannot
granules of chemical chemical composition, exceed 72 grams of
composition adhered to with no reports composition.
and encased in a paper permitted.
or cardboard wrapping
that upon ignition
produce sparks and/or
a crackling effect.
Crackling Tube....................... Consists of a tube that 20 total grams of Inner packaging cannot
contains small chemical composition, exceed 72 grams of
granules of chemical with no reports composition.
composition that upon permitted.
ignition produce
sparks and/or a
crackling effect.
Firecracker.......................... Consists of a small 50 milligrams of Multiple firecrackers
paper-wrapped or chemical composition can be fused together
cardboard tube that per firecracker. to form a string.
produces a single There is no limit on
report. number of firecrackers
in a string.
Flasher/Strobe....................... Consists of a small 5 total grams of Inner packaging cannot
paper-wrapped or chemical composition, exceed 60 grams of
cardboard tube that with no reports composition.
produces a crackling/ permitted.
flashing/strobe light
effect.
Flitter Sparkler..................... Consists of a paper or 25 total grams of None.
cardboard tube chemical composition,
attached to a stick or with no reports
wire. Upon ignition, permitted.
the device produces a Formulations containing
shower of sparks, a chlorates are limited
colored flame, and/or to 4 grams with no
a crackling effect. more than 15 percent
of the formulation
being chlorates.
Fountain (Cone)...................... Consists of a paper or 50 total grams of None.
cardboard tube that chemical composition,
upon ignition produces with no reports
a shower consisting of permitted.
any combination of
colored sparks, color
flame, crackle, smoke,
whistle, or micro star
effects.
[[Page 83529]]
Fountain (Cylindrical)............... Consists of a paper or 100 total grams of None.
cardboard tube that chemical composition,
upon ignition produces with no reports
a shower consisting of permitted.
any combination of
colored sparks, color
flame, crackle, smoke,
whistle, or micro star
effects.
Fountain (Nitrocellulose)............ Consists of a cone or 15 total grams of None.
tube device that chemical composition,
produces a shower of with no reports
small sparks, color, permitted.
and flame as its
primary effect using
nitrocellulose as the
major chemical
component.
Ground Spinner....................... Consists of a paper or 20 total grams of Multiple ground
cardboard tube that chemical composition, spinners can be fused
upon ignition emits a with reports permitted together to form a
shower of sparks that (each report limited string. Strings are
vent out of an orifice to 50 milligrams). limited to 20 grams of
causing the device to total composition.
spin rapidly on the
ground.
Illuminating Torch................... Consists of a paper or 100 total grams of None.
cardboard tube that chemical composition,
upon ignition, emits a with no reports
colored flame with or permitted.
without crackles or
sparks.
Smoke................................ Consists of a paper or 100 total grams of Multiple smoke devices
cardboard tube that chemical composition. can be fused together
upon ignition emits All mixtures to form a string.
smoke as the primary containing a chlorate Strings are limited to
effect. must contain an equal 100 grams of total
amount or greater composition.
amount of a carbonate
or bicarbonate (e.g.,
calcium carbonate,
sodium bicarbonate).
Snake................................ Consists of pressed 20 total grams of None.
pellet of pyrotechnic chemical composition,
composition that upon with no reports. Only
ignition produce a formulations of
snake-like ash that nitrated asphalt,
expands in length as asphaltum, bitumen,
the composition is pitch, and/or tar with
consumed. an oxidizer (with or
without a binder) are
permitted.
Specialty Device..................... Consists of a paper or 20 total grams of None.
cardboard tube(s), chemical composition,
e.g., in the shape of with reports permitted
an animal or a small (each report limited
vehicle, that produces to 50 milligrams).
multiple effects. No tube can contain
more than 2 grams of
composition; tubes
cannot contain aerial
components or internal
shells.
Wheel................................ Consists of a paper or 200 total grams of None.
cardboard tube(s) chemical composition,
placed on the ground with no reports.
or attached to a post, No tube can contain
by means of a nail, more than 60 total
spike or string. Upon grams of composition,
ignition the wheel which includes a 20
rotates, producing a gram propellant limit
shower of sparks, per tube.
color, crackling, Tubes cannot contain
flame, or whistle aerial components.
effects.
Handles are not
permitted.
Wire Sparkler or Dipped Stick........ Consists of a metal 100 total grams of Composition weight per
wire or wood dowel chemical composition, inner packaging cannot
coated with a chemical with no reports exceed 120 grams.
composition. Upon permitted.
ignition, the device Formulations containing
produces a shower of chlorates are limited
sparks, a colored to 4 grams with no
flame, and/or a more than 15 percent
crackling effect. of the formulations
being chlorates.
----------------------------------------------------------------------------------------------------------------
(3) Requirements specific to novelty firework devices. Except for
transportation by air, novelty fireworks conforming to the requirements
of this paragraph (b)(3) are not subject to this subchapter. For air
transportation, novelty devices must be transported as required by this
subchapter for ``UN3178, Flammable solid, inorganic, n.o.s.
(Novelties), 4.1, PG II''.
(i) Novelty devices must use chemicals in conformance with the
permitted and restricted chemical list in APA Standard 87-1A, Appendix
1 (IBR, see Sec. 171.7 of this subchapter).
(ii) Inner packagings of novelty devices must be packaged in strong
outer packagings. The packages must conform to the requirements of
Sec. 173.24. The maximum gross weight of a completed package may not
exceed 30 kg (66 pounds).
(iii) Each outer package, and overpack if used, containing novelty
devices must be plainly marked ``NOVELTIES, IN CONFORMANCE WITH Sec.
173.64, NOT REGULATED, EXCEPT WHEN TRANSPORTED BY AIR''.
(iv) Authorized novelty devices, and their descriptions,
specifications, and special conditions for transport are set forth as
follows:
[[Page 83530]]
Table 2 to Paragraph (b)(3)--Authorized Novelty Devices and Specifications
----------------------------------------------------------------------------------------------------------------
Type Description Specifications Special conditions
----------------------------------------------------------------------------------------------------------------
Booby Trap/Pull Apart................ Is a device that is 0.016 total grams of Inner packages must not
actuated by means of chemical composition, contain more than 12
friction. Pulling a which is limited to devices.
string or strings barium, potassium, and/
apart activate the or sodium chlorate
device producing a with red phosphorus.
noise effect.
Novelty Flitter Sparkler............. Consists of a paper or 5 total grams of .......................
cardboard tube chemical composition,
attached to a stick or with no reports
wire. Upon ignition, permitted.
the device produces a Formulations
shower of sparks, a containing chlorates
colored flame, and/or are limited to 4 grams
a crackling effect. with no more than 15
percent of the
formulation being
chlorates.
Party Poppers........................ Is a device that is 0.016 total grams of Inner packages must not
actuated by means of chemical composition, contain more than 72
friction. Pulling a which is limited to devices.
string or trigger barium, potassium, and/
activates the device or sodium chlorate
producing a noise with red phosphorus.
effect and releasing
paper streamers or
confetti. Common
examples resemble
champagne bottles and
toy pistols.
Novelty Snakes and Glow-Worms........ Consists of pressed 2 total grams of Inner packaging must
pellet of pyrotechnic chemical composition. not contain more than
composition that upon Only formulations of 25 devices.
ignition, produce a nitrated asphalt,
snake-like ash that asphaltum, bitumen,
expands in length as pitch, and/or tar with
the composition is an oxidizer (with or
consumed. without a binder) are
permitted.
Snappers............................. Consists of small, 0.001 total grams of Inner packages must not
paper-wrapped items. silver fulminate contain more than 50
When dropped, the coated on small bits devices with sawdust
device activates, of sand or gravel. or other impact
producing a noise absorbing materials.
effect.
Novelty Wire Sparkler or Novelty Consists of a metal 25 total grams of Inner packages must not
Dipped Stick. wire or wood dowel chemical composition, contain more than 8
coated with a chemical with no reports devices.
composition. Upon permitted.
ignition, the device Formulations
produces a shower of containing
sparks, a colored perchlorates are
flame, and/or a limited to 5 grams.
crackling effect. Formulations
containing chlorates
are limited to 4 grams
with no more than 15
percent of the
formulations being
chlorates.
Novelty Smoke Device................. Consists of a paper or 5 total grams of Inner packages must not
cardboard tube that chemical composition, contain more than 72
upon ignition, emits with no reports devices.
smoke as the only permitted. All
effect. mixtures containing a
chlorate must contain
an equal amount or
greater amount of a
carbonate or
bicarbonate (e.g.,
calcium carbonate,
sodium bicarbonate).
----------------------------------------------------------------------------------------------------------------
(4) Recordkeeping requirements. In addition to the certification of
each low hazard firework in accordance with this section, the
manufacturer must maintain a record of the documents demonstrating
compliance with this section. Each record must clearly provide the FW
number assigned to the device certified. The record must contain the
following information at minimum: FW certification document, category
of device, drawing, chemical composition list, gram quantities, and if
applicable, U.S. agent of service information. The record must be
accessible at or through the principal place of business for five years
after the device is manufactured and must be made available, upon
request, to an authorized official of a Federal, State, or local
government agency at a reasonable time and location, not to exceed five
(5) business days.
Issued in Washington, DC, on November 17, 2023, under authority
delegated in 49 CFR 1.97.
William S. Schoonover,
Associate Administrator for Hazardous Materials Safety, Pipeline and
Hazardous Materials Safety Administration.
[FR Doc. 2023-25887 Filed 11-29-23; 8:45 am]
BILLING CODE 4910-60-P
