[Federal Register Volume 77, Number 34 (Tuesday, February 21, 2012)]
[Rules and Regulations]
[Pages 9865-9867]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-3894]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 173

[Docket No. PHMSA-2011-0157; Notice No. 11-6]


Clarification on the Division 1.1 Fireworks Approvals Policy

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Clarification.

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SUMMARY: In this document, PHMSA is responding to comments received 
from its initial Notice No. 11-6 clarifying PHMSA's policy regarding 
the fireworks approvals program. Furthermore, in this document PHMSA is 
restating its policy clarification that it will accept only those 
classification approval applications for Division 1.1 fireworks that 
have been examined and assigned a recommended shipping description, 
division, and compatibility group by a DOT-approved explosives test 
laboratory, or those that have been issued an approval for the 
explosive by the competent authority of a foreign government 
acknowledged by PHMSA's Associate Administrator. This policy 
clarification is intended to enhance safety by ensuring that fireworks 
transported in commerce meet the established criteria for their 
assigned classification, thereby minimizing the potential shipment of 
incorrectly classified or forbidden fireworks.

DATES: The policy clarification discussed in this document is effective 
February 21, 2012.

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FOR FURTHER INFORMATION CONTACT: Mr. Ryan Paquet, Director, Approvals 
and Permits Division, Office of Hazardous Materials Safety, (202) 366-
4512, PHMSA, 1200 New Jersey Avenue SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction
II. Background
III. List of Commenters, Beyond-the-Scope Comments, and General 
Comments
IV. Summary of Policy Clarification

I. Introduction

    The Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) 
require that Division 1.1 fireworks must be examined by a DOT-approved 
explosives test laboratory and assigned a recommended shipping 
description, division, and compatibility group in accordance with Sec.  
173.56(b). The tests provided for the classification of Division 1.1 
fireworks specified in Sec. Sec.  173.57 and 173.58 describe the 
procedures used to determine the acceptance criteria and assignment of 
class and division for all new explosives. Further, the HMR also permit 
Division 1.1 firework devices that have been approved by the competent 
authority of a foreign government that PHMSA's Associate Administrator 
has acknowledged in writing as acceptable in accordance with Sec.  
173.56(g).
    On September 27, 2011, PHMSA published the initial Notice No. 11-6 
(76 FR 59769) clarifying its policy, consistent with the HMR, that all 
Division 1.1 fireworks must undergo examination by a DOT-approved 
explosives examination laboratory or be issued an approval for the 
explosive by the competent authority of a foreign government 
acknowledged by PHMSA's Associate Administrator. In today's document, 
PHMSA is responding to comments received as a result of this notice and 
is restating its policy clarification on the fireworks approval 
program.

II. Background

    The HMR require that Division 1.1 fireworks must be examined by a 
DOT-approved explosives test laboratory and assigned a recommended 
shipping description, division, and compatibility group in accordance 
with Sec.  173.56(b). The HMR also permit Division 1.1 firework devices 
that have been approved by the competent authority of a foreign 
government that PHMSA's Associate Administrator has acknowledged in 
writing as acceptable in accordance with Sec.  173.56(g).
    According to Sec.  173.56(j), manufacturers of Division 1.3 and 1.4 
fireworks, or their designated U.S. agents, may apply for an explosives 
(EX) classification approval without prior examination by a DOT-
approved explosives test laboratory if the firework device is 
manufactured in accordance with APA Standard 87-1 (IBR, see Sec.  
171.7), and the device passes the thermal stability test. Additionally, 
the applicant must certify that the firework device conforms to the APA 
Standard 87-1 and that the descriptions and technical information 
contained in the application are complete and accurate. PHMSA has in 
the past, on a case-by-case basis, in accordance with Sec.  173.56(i), 
approved some Division 1.1G fireworks without requiring testing by a 
DOT-approved explosives examination laboratory. PHMSA evaluates each EX 
approval application independently and has also required Division 1.1G 
fireworks to undergo examination testing by a DOT-approved explosive 
examination lab prior to issuing the EX approval.
    While APA Standard 87-1 contains two instances where Division 1.1 
fireworks may be approved under the standard, it does not call for the 
level of testing required in the HMR, nor does it provide testing and 
criteria to determine when a firework ceases to be a Division 1.1 and 
becomes forbidden for transport.
    In this document, PHMSA is clarifying its policy that all Division 
1.1 fireworks must undergo examination by a DOT-approved explosives 
examination laboratory or be approved by a competent authority. 
Division 1.1 fireworks will not require UN Test Method 6, as testing 
will be limited to UN Test Method 4a(i) and 4b(ii), as is specified in 
Sec.  173.57(b). The examination laboratory may request additional 
information to make its classification recommendation. Additionally, 
PHMSA allows the laboratory to make a classification recommendation for 
Division 1.1 fireworks based on analogy.
    PHMSA believes that by issuing Division 1.1 fireworks approvals 
only after a DOT-approved explosive laboratory has examined and 
recommended a classification, or an approval has been issued by a 
competent authority of a foreign government acknowledged by PHMSA's 
Associate Administrator, it is ensuring that fireworks transported in 
commerce meet the established criteria for their assigned 
classification, thereby minimizing the potential shipment of 
incorrectly classified or forbidden fireworks.

III. List of Commenters, Beyond-the-Scope Comments, and General 
Comments

    PHMSA received three comments in response to the initial Notice No. 
11-6. The comments covered various topics including, but not limited 
to, transportation safety, general comments, and economic impacts. One 
commenter supported the clarification to the fireworks policy in 
initial Notice 11-6, while two commenters had reservations about it. A 
summary of the comments received is discussed below. The comments, as 
submitted to the docket for the initial Notice No. 11-6 (Docket No. 
PHMSA-2011-0157), may be accessed via http://www.regulations.gov and 
were submitted by the following:
    (1) Veolia ES Technical Solutions, L.L.C.; PHMSA-2011-0157-0002.
    (2) American Pyrotechnics Association (APA); PHMSA-2011-0157-0003.
    (3) Kellner's Fireworks Inc.; PHMSA-201-0157-0004.

Beyond-the-Scope Comments

    One commenter requests PHMSA consider waste management of used or 
defective fireworks when proposing any amendments to regulations 
related to the transport of fireworks. In this document, PHMSA does not 
propose any regulatory amendments; rather, we are clarifying existing 
policy. While PHMSA agrees environmental impacts should be considered 
when proposing amendments to regulations, no regulatory changes were 
proposed in the initial Notice; therefore, waste management of 
fireworks is beyond the scope of this document.
    Another commenter acknowledges the current prohibition in the HMR 
to classify Division 1.1 fireworks under Sec.  173.56(j), but requests 
that PHMSA remove the terminology ``Division 1.3 and Division 1.4'' in 
Sec.  173.56(j) to allow PHMSA to grant approvals for all fireworks 
manufactured in accordance with APA Standard 87-1, regardless of their 
classification. This document is a clarification of current 
requirements and does not propose any regulatory amendments, rather, 
PHMSA is clarifying existing policy; therefore this request will be 
handled as a petition for rulemaking and responded to accordingly.

General Comments

Transportation Safety
    With regard to transportation safety, PHMSA received one comment in 
support of its effort to clarify the classification of Division 1.1 
fireworks. Specifically, this commenter noted that

[[Page 9867]]

PHMSA's oversight of the classification of Division 1.1 fireworks is 
preferable due to the increased safety hazards involved in the 
management of Division 1.1 fireworks.
    Another commenter opposes PHMSA's clarification and indicates that 
Division 1.1 fireworks approved under APA Standard 87-1 have not 
resulted in any incidents that would cause it to reconsider its 
practice. Although to date there have been no known incidents involving 
the transportation of Division 1.1 fireworks, there are known 
occurrences of fireworks being transported that contain chemical 
compositions rendering them forbidden from transportation. The APA 
Standard 87-1 does not provide the testing and criteria to determine 
when a device ceases to be a Division 1.1 firework device and becomes 
forbidden from transportation. Testing Division 1.1 fireworks devices 
as prescribed in the HMR, enables a determination when a firework 
device ceases to be a Division 1.1 device and becomes forbidden. 
Furthermore, this clarification will provide oversight to ensure that 
Division 1.1 fireworks meet the established criteria for their assigned 
classification, thereby minimizing the potential shipment of 
incorrectly classified or forbidden fireworks.
Economic Impact
    One commenter opposes the policy clarification because they 
indicate that fireworks currently classified as Division 1.1G devices 
have not changed in many years, even though the regulations governing 
their transportation have changed. The commenter states that a 
fireworks device that was previously considered to be 1.3G under APA 
Standard 87-1 is now considered a 1.1G, but the device is still 
manufactured the same way as it was when the device was classed as a 
1.3G.
    In December 1991, PHMSA (Research and Special Programs 
Administration) revised the HMR to align its classification system for 
fireworks with the U.N. Recommendations on the Transport of Dangerous 
Goods. Under the previous system, fireworks were classified as Class A, 
B, or C--Class A fireworks were considered to be the most hazardous and 
Class C fireworks were considered to be least hazardous. For the most 
part, Class A fireworks were reclassed as Division 1.1, Class B 
fireworks were reclassed as Division 1.3, and Class C fireworks were 
reclassed as Division 1.4. This resulted in some fireworks with shell 
diameters as great as 16 inches being classed as Division 1.3 
fireworks. In the 2001-2002 edition of the APA Standard 87-1, fireworks 
with diameters greater than 10 inches were all classified as Division 
1.1 fireworks. Prior to that edition of the APA Standard 87-1, aerial 
shell firework devices not classed as a 1.4G were classed as a 1.3G 
regardless of size or quantity of flash composition. This change was 
made in the interest of safety.
    While PHMSA has approved Division 1.1G fireworks manufactured in 
accordance with the APA Standard 87-1, it evaluates each EX approval 
independently and has also required Division 1.1G fireworks to be 
examined.
    Further, the commenter states that the testing for these items can 
cost upwards of $8,000 and that the cost will put fireworks companies 
intending to sell Division 1.1G fireworks devices at a major loss 
before the product is available for sale. To the contrary, third-party 
labs have indicated that the cost of performing these tests is 
considerably less--depending on a number of variables, PHMSA estimates 
that required tests would cost less than $5,400.
    Also, as indicated in the initial document, if a fireworks device 
is classed and approved as a Division 1.1 firework, the UN Test Method 
6 is not required; rather, testing will be limited to UN Test Method 
4a(i) and 4b(ii), as is specified in Sec.  173.57(b). Further, PHMSA 
allows the laboratory to make a classification recommendation for 
Division 1.1 fireworks based on analogy.
    This document is intended to clarify current regulations: that only 
Division 1.3 and 1.4 fireworks devices may be approved in accordance 
with the APA Standard 87-1.

IV. Summary of Policy Clarification

    Based on the comments received and PHMSA's responses to those 
comments, henceforth, PHMSA will not accept Division 1.1 fireworks 
approval applications submitted under the APA Standard 87-1. Division 
1.1 fireworks must be examined and assigned a recommended shipping 
description, division, and compatibility group by a DOT-approved 
explosives test laboratory, or issued an approval for the explosive by 
the competent authority of a foreign government acknowledged by PHMSA's 
Associate Administrator. On a case-by-case basis under 173.56(i), PHMSA 
will evaluate them for approval without testing.

    Issued in Washington, DC, on February 14, 2012 under authority 
delegated in 49 CFR part 1.
Magdy El-Sibaie,
Associate Administrator for Hazardous Materials Safety, Pipeline and 
Hazardous Materials Safety Administration.
[FR Doc. 2012-3894 Filed 2-17-12; 8:45 am]
BILLING CODE 4910-60-P