[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