[Federal Register Volume 78, Number 136 (Tuesday, July 16, 2013)]
[Rules and Regulations]
[Pages 42457-42478]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-16986]



[[Page 42457]]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 107, 171, 172, and 173

[Docket No. PHMSA-2010-0320 (HM-257)]
RIN 2137-AE70


Hazardous Materials: Revision to Fireworks Regulations (RRR)

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

ACTION: Final rule.

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SUMMARY: PHMSA is revising the Hazardous Materials Regulations 
applicable to the approval of Division 1.4G consumer fireworks (UN0336 
Fireworks) and establishing DOT-approved fireworks certification 
agencies that provide an alternative to the approval process for 
Division 1.4G consumer fireworks. PHMSA is also reformatting the 
procedural regulations pertaining to certification agencies. These 
actions clarify regulations with respect to PHMSA's fireworks approval 
process and provide regulatory flexibility in seeking authorization for 
the transportation of Division 1.4G consumer fireworks.

DATES: Effective date: August 15, 2013.

FOR FURTHER INFORMATION CONTACT: Lisa O'Donnell or Rob Benedict, 
Standards and Rulemaking Division, Office Hazardous Materials Safety, 
Pipeline and Hazardous Materials Safety Administration, U.S. Department 
of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, at 
(202) 366-8553.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
    A. Notice of Proposed Rulemaking
    B. Comments on the NPRM
    C. Comments Beyond-the-Scope
    D. Comments Opposed to the FCA Process
II. Amendments Adopted in Final Rule
III. Section-by Section Review
IV. Regulatory Analyses and Notices
    A. Statutory/Legal Authority for This Rulemaking
    B. Executive Order 12866, 13563, and DOT Regulatory Policies and 
Procedures
    C. Executive Order 13132
    D. Executive Order 13175
    E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies
    F. Paperwork Reduction Act
    G. Regulatory Identifier Number (RIN)
    H. Unfunded Mandates Reform Act
    I. Environmental Assessment
    J. Privacy Act
    K. International Trade Analysis
    L. National Technology Transfer and Advancement Act

I. Background

    The pyrotechnic industry is a global logistics supply chain 
comprised of mostly foreign fireworks manufacturers and domestic 
importers, retailers, distributors, and consumers. The current 
Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) require 
that prior to being transported in the U.S., all explosives, including 
Division 1.4G consumer fireworks, are classed, approved, and issued a 
DOT classification approval number (EX number) by PHMSA. The EX number 
is a unique identifier that indicates a firework device has been 
classed and approved for transportation into, out of, and throughout 
the United States.
    PHMSA is committed to sustaining the exemplary transportation 
safety record that Division 1.4G consumer fireworks have had over the 
past forty years, but seeks to reduce regulatory burden and increase 
flexibility by providing an alternative to PHMSA's current approval 
process. PHMSA has conducted an extensive review of the fireworks 
approval program and has determined that there is an unnecessary delay 
in the processing of EX approval applications under the current 
process.
    In the notice of proposed rulemaking (NPRM) published in the 
Federal Register on August 30, 2012 [77 FR 52636] under Docket No. 
PHMSA 2010-0320 (HM-257), PHMSA proposed an alternative to the approval 
process for Division 1.4G consumer fireworks, allowing manufacturers, 
or designated U.S. agents, to submit applications for certification to 
a DOT-approved Fireworks Certification Agency (FCA), in lieu of 
submitting applications for approval directly to PHMSA. To ensure 
appropriate oversight of FCAs, the NPRM included reporting and 
recordkeeping requirements necessary to become a DOT-approved FCA. 
Additionally, PHMSA proposed to define the term ``consumer firework'' 
and revise the necessary requirements needed for approval as a 
certification agency by clearly describing each type of DOT-approved 
certification agency, and to add requirements for an FCA.
    In this final rule, PHMSA has modified the proposed requirements in 
response to recommendations from commenters. Specifically, the approval 
process to become an FCA is described in detail, the identification 
sequence of FCA-certified devices is streamlined, and the FCA firework 
device review process is simplified to be more consistent with the 
current PHMSA process.
    This final rule affects the following entities and establishes the 
following requirements:

------------------------------------------------------------------------
           Affected entities                        Revisions
------------------------------------------------------------------------
 Division 1.4G consumer           Provide alternative
 fireworks manufacturers complying with   process to legally transport
 part 173.                                Division 1.4G consumer
 Division 1.4G consumer           fireworks.
 fireworks importers complying with       Require retention of a
 part 173.                                record by certifying agencies,
 Division 1.4G consumer           manufacturers and importers
 fireworks transporters complying with    indicating a Division 1.4G
 part 173.                                consumer firework has been
 Fireworks Certification          certified in a manner
 Agencies.                                consistent with the
 Lighter Testing Agencies......   requirements.
 UN Package Testing Agencies...
 Portable tank and Multiple-      Provide approval
 Element Gas Container (MEGC)             process for a fireworks
 Certification Agencies.                  certification agency.
 State and local fire and         Clarify approval
 police departments that utilize          process for a certification
 Division 1.4G consumer fireworks         agency for lighter testing
 classification approvals under the HMR.  agency, UN third-party
                                          certification agency
                                          (packaging), or Portable tank
                                          and MEGC certification agency.
------------------------------------------------------------------------

    As PHMSA is not requiring fireworks manufacturers to use an FCA, 
and to do so is completely voluntary, PHMSA is not imposing any 
additional costs. We estimate an FCA certification fee of between $100 
and $450.\1\ A firework manufacturer will not pay this fee

[[Page 42458]]

unless it believes it is net beneficial to do so. Since the option 
should speed up the classification process, it could reduce some of the 
uncertainty as to when a manufacturer can process an importer's order 
for a firework device, and other supply chain issues. Manufacturers 
likely to use an FCA will be ones seeking certification relatively 
closer to peak sales periods (primarily before the 4th of July). If 
manufacturers plan accordingly and wait for PHMSA to issue an approval, 
they won't pay the FCA fee. The benefits for manufacturers using the 
FCA certification process to expedite shipments are difficult to 
quantify. However, we know that any rational manufacturer will not 
avail itself to this option unless it makes business sense.
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    \1\ The lowest estimate quoted in two comments to the NPRM is 
$100 and the highest estimate is $450; these estimates were based 
upon the inclusion of physical examination of a firework device 
requirement proposed in the NPRM, but not included in the final 
rule. PHMSA believes these figures still accurately reflect the 
possible range due to the complexity of firework designs.
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    Certain administrative fees arising from this rulemaking that are 
assessed on consumer fireworks manufacturers will primarily be due to a 
DOT-approved FCA coming into existence and to a company's expansion of 
services to act as an FCA. These costs may include expenses for office 
supplies, other non-capital equipment, and additional direct and 
indirect labor costs.
    PHMSA assumes that a DOT-approved FCA will market to fireworks 
manufacturers and their U.S.-registered agents its ability to certify 
such fireworks as an advantage over applying for PHMSA approval because 
of expected faster certification by an FCA. However, PHMSA believes 
that, because the FCA will likely assess an explicit cost for its 
certification services, fireworks manufacturers will individually 
consider their businesses' potential to benefit from expedited 
processing against the expected costs of this certification fee. 
Comments to the NPRM indicated that most manufacturers are of the 
opinion that the expedited processing of fireworks certifications 
outweighs the expected costs of the certification fees and that the 
alternative certification process will not compromise the current level 
of transportation safety of Division 1.4G consumer fireworks.

A. Notice of Proposed Rulemaking

    PHMSA issued an NPRM on August 30, 2012 [77 FR 52636] under Docket 
No. PHMSA 2010-0320 (HM-257), which proposed to revise Title 49 of the 
Code of Federal Regulations (CFR) applicable to the approval of 
Division 1.4G consumer fireworks (UN0336 fireworks) and establish a 
process for allowing a DOT-approved FCA to certify UN0336 fireworks as 
an alternative to the current PHMSA approval process. PHMSA also 
proposed to provide clarity by reformatting the procedural regulations 
pertaining to certification agencies.
    Prior to the transportation into, out of, and throughout the United 
States, all explosives, including Division 1.4G consumer fireworks, 
must be classed, approved, and issued an EX number by PHMSA. The EX 
number is a unique identifier that indicates a specific firework device 
has been classed and approved for transportation.
    In the NPRM, PHMSA proposed a new alternative to permit 
manufacturers, or their U.S agents, to apply to an FCA to review and 
certify that Division 1.4G consumer fireworks comply with APA Standard 
87-1 and are safe for transportation in commerce. To provide oversight 
of the FCAs, PHMSA proposed reporting and recordkeeping requirements. 
PHMSA also proposed to revise subpart E of part 107 to clarify the 
approval process for designation as a certification agency. We also 
proposed to require the FCAs to physically examine a sample of the 
Division 1.4G consumer firework prior to initial shipment to determine 
whether the device meets the requirements of APA Standard 87-1 and 
matches the dimensions, chemical composition, and device type specified 
in the application for certification.
    To become an FCA, in the NPRM we proposed that the applicant would 
be required to submit an application with all procedures it will use to 
review and certify Division 1.4G consumer fireworks, in accordance with 
the provisions in subpart E of part 107. These procedures were to be 
designed by the applicant; however, PHMSA was to review the applicant's 
procedures to determine whether they are adequate to certify compliance 
with APA Standard 87-1 and whether the FCA certification process 
provides an equivalent level of oversight as the current approval 
process.
    PHMSA stated in the NPRM that any domestic or foreign entity may 
apply to become an FCA provided that it is not directly or indirectly 
controlled by, or have a direct financial interest in, any entity that 
manufactures, transports, or imports fireworks, except for collection 
of fees for services as an FCA. We proposed that to qualify as an FCA, 
each applicant must: (1) Meet specific criteria designed to ensure that 
the FCA is an impartial, independent, unbiased, and qualified entity; 
(2) submit an application, including certification procedures; and (3) 
successfully complete a facility inspection performed by PHMSA. We 
indicated that to meet the specific qualification criteria, the 
applicant will be required to demonstrate knowledge of the applicable 
regulations, including subpart C of part 173 of the HMR and the APA 
Standard 87-1, and the ability to review and evaluate design drawings 
and applications in accordance with the APA Standard 87-1. If approved, 
PHMSA proposed to issue an approval and an identifying number unique to 
that FCA.
    To differentiate between an approval issued by PHMSA and a 
certification issued by a DOT-approved FCA, PHMSA proposed to use an FX 
numbering scheme. Instead of issuing an EX number and approval through 
PHMSA for a fireworks device, which is the approval designation the 
Associate Administrator of PHMSA issues to all explosives, including 
fireworks, we proposed that the DOT-approved FCA would issue a unique 
identifier (FX number) for devices it certifies as Division 1.4G 
consumer fireworks. Given the long history and wide recognition of the 
EX numbering scheme, PHMSA sought specific comments on the supply chain 
implications, the economic impact and safety concerns associated with 
the proposed FX numbering system, as well as comments on how to 
implement the changes if they were adopted.
    We requested specific comments on the underlying estimates of the 
analysis, including the percentage of entities that will choose to have 
their 1.4G consumer fireworks certified by FCAs instead of being 
approved by PHMSA, the manner in which records will be kept (i.e., 
electronic or paper), the estimated cost of the recordkeeping 
requirements, the number of affected entities (e.g., manufacturers and 
importers), and the estimated fee an FCA would charge for 
certification.
    Based on the August 30, 2012, NPRM, and comments received, this 
final rule adopts an alternative option for Division 1.4G consumer 
fireworks in which manufacturers, or designated U.S. agents, may submit 
applications for certification to an FCA, in lieu of submitting 
applications for approval to PHMSA. The specific differences between 
the proposals in the NPRM and the amendments adopted in the final rule 
are discussed further below.

B. Comments on the NPRM

    The comment period on the NPRM closed on October 29, 2012. PHMSA 
received comments from various industry associations, fireworks 
manufacturers, distributers, importers, and transporters. The majority 
of the comments were positive, citing that the proposed alternative 
would sustain the current level of safety while allowing

[[Page 42459]]

faster time to market for new consumer fireworks. Included with the 
positive responses, were suggestions on ways to refine or clarify the 
proposed changes. A number of the comments were beyond-the-scope of the 
rule as they suggested changes that were not addressed in the NPRM. 
Three commenters opposed all of the changes proposed in the NPRM; their 
comments are discussed in detail below. Overall comments were received 
from 37 entities; many of whom provided comments on a number of 
subjects. Thirty-three entities provided positive comments. Within the 
33 who were in favor of the proposal, nine also provided comments that 
were beyond-the-scope of this rule. Three commenters provided comments 
in opposition to the proposal, with one providing an additional comment 
that was beyond-the-scope of this rule. In addition, these comments 
addressed issues or asked questions that have been addressed in this 
final rule. PHMSA has summarized comments to specific sections in the 
``Section-by-Section Review'' discussion of this rulemaking. You may 
review comments in the docket for this action at http://www.regulations.gov under docket number PHMSA-2010-0320. For your 
convenience, a listing of the docket entries is provided below.

 
------------------------------------------------------------------------
            Commenter                          Docket ID No.
------------------------------------------------------------------------
American Fireworks Standards       PHMSA-2010-0320-0016
 Laboratory (AFSL).
American Pyrotechnics Association  PHMSA-2010-0320-0017
 (APA).
BJ Alan Company..................  PHMSA-2010-0320-0026
Elkton Sparkler Company..........  PHMSA-2010-0320-0005
Fireworks Over America...........  PHMSA-2010-0320-0010
Fireworks Pyrotechnique by         PHMSA-2010-0320-0021
 Grucci, Inc..
Forward Fireworks Co. Ltd........  PHMSA-2010-0320-0036
Hamburg Fireworks Display, Inc...  PHMSA-2010-0320-0008
International Technical and        PHMSA-2010-0320-0003
 Quality Services Limited.
Jake's Fireworks, Inc............  PHMSA-2010-0320-0023
Kellner's Fireworks Inc..........  PHMSA-2010-0320-0037
Keystone Novelties Distributors,   PHMSA-2010-0320-0018
 LLC.
Legend Fireworks.................  PHMSA-2010-0320-0012
Legion Fireworks Co., Inc........  PHMSA-2010-0320-0024
Liberty Fireworks, Inc...........  PHMSA-2010-0320-0022
Melrose Pyrotechnics, Inc........  PHMSA-2010-0320-0004
National Fireworks Association     PHMSA-2010-0320-0039
 (NFA).
Next FX and Stage FX.............  PHMSA-2010-0320-0014
North Central Industries, Inc....  PHMSA-2010-0320-0007
Precocious Pyrotechnics, Inc.....  PHMSA-2010-0320-0028
S. Vitale Pyrotechnic Industries.  PHMSA-2010-0320-0009
Sparks Fly.......................  PHMSA-2010-0320-0027
Steve Anthony Coman..............  PHMSA-2010-0320-0033
Stonebraker Rocky Mountain         PHMSA-2010-0320-0035
 Fireworks Co..
The Alliance of Special Effects    PHMSA-2010-0320-0030
 Pyrotechnic Operators, Inc..
The International Fireworks        PHMSA-2010-0320-0013
 Shippers Association (IFSA).
Thunder Fireworks, Inc...........  PHMSA-2010-0320-0032
THY Associated, Inc..............  PHMSA-2010-0320-0031
TNT Fireworks....................  PHMSA-2010-0320-0019
Tian Cheng Pyrotechnics            PHMSA-2010-0320-0038
 Laboratory.
Veolia ES Technical Solutions,     PHMSA-2010-0320-0034
 LLC.
Wald & Co. Charles Edward Wald...  PHMSA-2010-0320-0025
Warpath Tribal Corp..............  PHMSA-2010-0320-0006
Weeth Associates. LLC............  PHMSA-2010-0320-0020
Western Enterprises, Inc.........  PHMSA-2010-0320-0029
Win Da Hong (HK) Co., Ltd........  PHMSA-2010-0320-0011
Winco Fireworks International,     PHMSA-2010-0320-0015
 LLC.
------------------------------------------------------------------------

C. Comments Beyond-the-Scope

Allow FCAs To Certify Division 1.3G Fireworks
    Four commenters--APA, AFSL, Fireworks By Grucci, Inc., and Melrose 
Pyrotechnics--suggested that Division 1.3G fireworks be included in 
Sec.  173.65. Specifically, commenters claimed that Division 1.3G 
fireworks, like 1.4G consumer fireworks, possess an exemplary safe 
transportation record and are widely used in the United States. 
Commenters suggested the expansion of the original proposal in the NPRM 
to include Division 1.3G fireworks would increase the economic benefits 
of the original proposal. Specifically, expanding the proposal to 
include Division 1.3G fireworks would increase the amount of expedited 
shipments, would provide a cost savings to the industry, and would 
provide flexibility and innovation for U.S.-based companies. Finally, 
AFSL noted that an independent review and certification of Division 
1.3G fireworks is already being done on a voluntary basis. This Display 
Fireworks Inspection program includes a factory audit program, product 
and packaging inspection, as well as container loading supervision 
requirements.\2\
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    \2\ http://www.afsl.org/sites/default/files/AFSL-DISPLAY%20FIREWORKS%20STANDARDS%20FINAL%2004102012.pdf (Accessed 02/
21/2013).
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    Division 1.3 fireworks pose a greater hazard than Division 1.4 
fireworks by definition.\3\ In the NPRM, we proposed the FCA 
alternative for only the lowest hazard fireworks; i.e., Division 1.4G 
consumer fireworks. PHMSA noted in the NPRM that over the past forty 
years, there have been 35 reported transportation incidents in the 
United States involving fireworks that were

[[Page 42460]]

declared hazardous materials. During this same period, there has never 
been a death or major injury attributed to fireworks while in 
transportation when there was compliance with the regulations. While 
there have been two incidents that resulted in fatalities in that forty 
year period, both involved the improper setup or storage of display 
fireworks, and were not attributed to the transportation of Division 
1.4G consumer fireworks. Furthermore, the majority of PHMSA fireworks 
approvals (approximately 75 percent) are for Division 1.4G consumer 
fireworks devices. Limiting the FCA program to Division 1.4G consumer 
fireworks proved to be the safest and most effective manner to provide 
regulatory flexibility while maintaining safety.
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    \3\ See 49 CFR 173.50 Class 1--Definitions.
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    As the NPRM proposed the FCA alternative for the lowest hazard 
fireworks only, Division 1.4G consumer fireworks, expanding the 
proposal in the NPRM to include Division 1.3G fireworks, is considered 
beyond the scope of this rulemaking. While PHMSA agrees the economic 
benefits of the original proposal in the NPRM may be increased by 
allowing other fireworks to be certified by FCAs, a more extensive 
safety and policy analysis would need to be completed before we expand 
the applicability beyond that proposed in the NPRM. We will continue to 
evaluate our fireworks approvals program and monitor the FCA 
certification process to ensure it provides an equivalent level of 
oversight as the current approvals process. Further, we will monitor 
the Consumer Product Safety Commission's (CPSC) compliance efforts and 
evaluate the appropriateness of a similar program. We may consider 
authorizing FCAs to certify Division 1.3G fireworks in the future. 
However, in this final rule, only Division 1.4G consumer fireworks will 
be authorized to be certified by an FCA.
Incorporate by Reference Revised APA Standard 87-1
    Eight commenters \4\ asked that we incorporate by reference a 
revised version of the American Pyrotechnics Association (APA) Standard 
87-1, Standard for Construction and Approval for Transportation of 
Fireworks, Novelties, and Theatrical Pyrotechnics (2001). Most of the 
commenters echoed the comments submitted by APA, which indicated:
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    \4\ APA, AFSL, Fireworks by Grucci, Inc., Fireworks Over 
America, Next FX and Stage FX, Precocious Pyrotechnics Inc., The 
Alliance of Special Effects & Pyrotechnic Operators, and Win Da Hong 
(HK) Co. Ltd.

    The currently-adopted version of APA Standard 87-1 was published 
in 2001, and went through a lengthy preparation process within the 
APA that was then followed by a lengthy review by DOT prior to its 
adoption into Title 49. It is, however, a fifteen year old document 
that outlines the basic construction and approval requirements for 
fireworks, novelties, and theatrical pyrotechnics. There have been 
many advances in the consumer fireworks industry during those 15 
years, and even in the decade since it was formally adopted. In 
particular, a variety of new devices have been developed, including 
combination devices and girandole, and new technologies have come 
into the industry. More and more devices, for example, now contain 
multiple tubes, and represent combinations of effects that 
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previously were limited to single tubes of separate items.

    Further, the National Fireworks Association (NFA) suggests that we 
make various changes to the application form in APA Standard 87-1.
    PHMSA understands that APA is working on a revision of the APA 
Standard 87-1 currently incorporated by reference in the HMR. However, 
until this updated version is finalized and published, PHMSA cannot 
adopt the revised APA Standard 87-1. As with any standard incorporated 
by reference in Sec.  171.7, PHMSA periodically reviews and updates 
authorized industry consensus standards following a complete review and 
analysis of the safety and cost implications of that standard. When it 
is finalized and published by APA, and PHMSA determines that it is 
appropriate to incorporate that version of the standard, we will do so 
through the rulemaking process, providing opportunity for public 
comment. Until that time, we will continue to incorporate by reference 
the 2001 edition of the APA Standard 87-1, which continues to be used 
successfully and safely by PHMSA and the regulated community.
Provide Regulatory Relief for Transportation of Consumer Fireworks 
Shipped for Disposal
    Veolia ES Technical Solutions, LLC requested PHMSA adopt certain 
regulatory relief for the transportation of consumer fireworks being 
shipped for disposal. They state:

    Consumer fireworks are routinely confiscated by local 
enforcement officials throughout the country and then packaged in UN 
specification drums awaiting disposal. Typically water is added to 
the drums to thoroughly wet the devices and eliminate any potential 
for ignition of the devices. These containers are then offered for 
shipment off-site to a disposal facility for destruction. Although 
this is proven safe practice for managing the consumer fireworks, it 
creates many issues for environmental management companies like 
Veolia when attempting to comply with the requirements of the HMR 
when shipping to a disposal facility.

    We agree with Veolia that the transportation of consumer fireworks 
for disposal is an issue that must be considered. PHMSA is actively 
working with other Federal agencies to evaluate current fireworks 
disposal practices and consider changes to enhance the safe disposal of 
firework devices and debris. This joint effort may lead to future 
regulatory action. However, as the NPRM under this docket did not 
propose any requirements for waste consumer fireworks, this comment is 
considered beyond-the-scope of this rulemaking.

D. Comments Opposed to the FCA Process

    Although the comments to the NPRM were predominantly positive, 
three commenters, Kellner's Fireworks, Inc., the International 
Fireworks Shippers Association (IFSA), and NFA, opposed the idea of 
establishing an alternative to the approval process for Division 1.4G 
consumer fireworks outright. The rationale of each of these commenters' 
opposition and PHMSA's response is detailed below. However, much of 
this opposition was predicated on the assumption that PHMSA would 
require FCAs to physically examine a firework device, which we are not 
requiring in this final rule.
FCAs Will Not Streamline Review Process
    Kellner's Fireworks, Inc., IFSA, and NFA disagree that the 
alternative option for manufacturers or their designed U.S. agents to 
apply for certification from an FCA would expedite the process. 
Kellner's Fireworks Inc., believes that FCAs would take the same time 
to review applications as it takes PHMSA. They state:

    All of the EX number applications submitted will still need to 
be completely reviewed by either an FCA or PHMSA and therefore will 
not necessarily reduce the amount of time it takes to obtain an 
approval. If every company were to use the same few FCA's the same 
number of applications currently being reviewed will still only be 
reviewed by a few people and the FCA's will get bogged down with 
paperwork just as PHMSA has in the past.

    PHMSA agrees with the portion of the above statement that volume of 
applications submitted should remain relatively constant with the 
introduction of FCA certification. However, PHMSA does not agree that 
the introduction of FCAs will have no positive effect on the overall 
speed of review of a Division 1.4G consumer firework application.

[[Page 42461]]

PHMSA notes that with the introduction of FCAs, the number of reviewers 
of Division 1.4G consumer fireworks will increase and consequently 
divide the workload between FCAs and PHMSA. This division of workload 
will increase the capacity for applications of Division 1.4G consumer 
fireworks to be reviewed simultaneously and, therefore, decrease the 
backlog of fireworks applications awaiting review.
    Both Kellner's Fireworks, Inc., and NFA assert that the proposals 
contained in the NPRM do not streamline the process for obtaining a 
certification for transportation of Division 1.4G consumer fireworks, 
and in fact the changes add steps to the process. PHMSA agrees that the 
requirement to physically examine a sample device of Division 1.4G 
consumer fireworks, as proposed in the NPRM, does add a layer of 
complexity not present under the current PHMSA review process. 
Accordingly, PHMSA has removed the requirement that FCAs physically 
examine a firework device in this final rule. With this modification, 
the FCA and PHMSA application review process parallel one another. 
PHMSA is confident that eliminating the requirement that FCAs 
physically examine a firework device resolves many of the issues both 
Kellner and NFA presented.
Proposal Adds Financial Burden
    Furthermore, Kellner's Fireworks, Inc. and NFA's opposition to the 
NPRM is also rooted in their belief that the proposals in the NPRM will 
add a financial burden and that the NPRM is not in the spirit of 
Executive Order 13610. A full discussion of Executive Order 13610 is 
provided later in this document; however, the results of an economic 
analysis of both the NPRM and final rule demonstrate that establishing 
and implementing the FCA option to review and certify Division 1.4G 
consumer firework will be cost beneficial (see ``Executive Order 13610, 
Executive Order 13563, Executive Order 12866, and DOT Regulatory 
Policies and Procedures'' section of this document and economic 
analysis in the rulemaking docket). In addition, although an FCA will 
charge a fee for its services, the use of an FCA is optional (not a 
required cost), and manufacturers will use the FCA option if it is net 
beneficial to do so; if it is not, they will use the PHMSA approval 
option.
Difficulty in Oversight
    In addition to the comments shared with Kellner, NFA believes that 
since the vast majority of fireworks are produced in China, FCAs would 
be established in foreign countries. NFA notes that the location of 
these FCAs could provide PHMSA with challenges in oversight, 
specifically noting that monitoring for compliance would be difficult. 
PHMSA understands that FCAs may be established outside of the United 
States and does not see this as an impediment to successfully 
overseeing and monitoring FCAs. With the requirements adopted in this 
final rule an FCA will, in accordance with its approval, transmit FCA 
certifications to PHMSA on a regular basis. PHMSA will have the ability 
to review this documentation to ensure accuracy and consistency.
    If the periodic review of the documentation reveals non-compliance, 
or an FCA does not abide by the terms and conditions of its approval, 
PHMSA may conduct enforcement investigations, impose penalties for 
violations and, if appropriate, suspend or terminate the FCA's approval 
to certify fireworks. Furthermore, cylinders, like fireworks, are 
manufactured outside of the United States and PHMSA successfully 
monitors the compliance of these foreign entities.
Applications Denials and Rejections
    NFA states that in the NPRM, applications, denials, and rejections 
were not addressed. Specifically, NFA notes the NPRM does not address 
how an FCA would handle applications that are initially or repeatedly 
denied. While the NPRM did address reconsideration of an FCA's approval 
request, the NPRM did not explicitly address reconsideration of a 
manufacturer's, or a foreign manufacturer's designated U.S. agent's, 
certification application request to an FCA, if that request is denied.
    In the NPRM, PHMSA proposed that to become a DOT-approved FCA, the 
applicant will be required to submit an application with all procedures 
it will use to review and certify Division 1.4G consumer fireworks, in 
accordance with the provisions in subpart E of part 107. Although not 
explicitly stated, it is expected these procedures would include an 
FCA's proposed manner of handling denials and rejections of a 
manufacturer's, or a designated U.S. agent's, certification application 
request. Further, as the FCA certification process is designed to 
parallel the current approval process, PHMSA anticipates that denial 
and reconsideration procedures would be analogous to those provided for 
DOT-issued approvals specified in Sec.  107.715.
    Further, as part of its certification requirements, in addition to 
notifying the manufacturer of the reasons a firework device has been 
denied certification, an FCA must, as a condition of the FCA approval, 
report its denial of a specific firework device to PHMSA. If a 
manufacturer resubmits a certification request for the same device to 
an FCA, and the device is ultimately certified as compliant, the FCA 
will also submit this information to PHMSA. With respect to 
applications with formatting or minor editorial errors, PHMSA believes 
that each FCA would develop a method to expeditiously handle these 
errors without the need to reject an application.
Implementation Time
    Finally, NFA states their belief that ``[e]stablishing a body of 
FCAs could take years to implement, fine tune, and regulate in an 
industry that needs relief immediately.'' While the time it will take 
to realize the full impact of the changes adopted in this final rule is 
difficult to determine, PHMSA believes the establishment of FCAs will 
be a long-term, sustainable, and safe solution. Further, PHMSA believes 
the impact of this alternative process will be realized faster than the 
time NFA asserts. As with any new regulation, implementing a change 
takes time, but to lessen the implementation time, PHMSA is updating 
the current guidance available \5\ regarding the approval/certification 
process and the transportation of fireworks, to include information on 
the alternative FCA certification process.
---------------------------------------------------------------------------

    \5\ http://phmsa.dot.gov/hazmat/regs/sp-a/approvals/fireworks 
(Accessed 02/21/2013).
---------------------------------------------------------------------------

Alternative Solution
    IFSA voiced its opposition to the proposals in the NPRM and 
provided an alternative option to the proposals in the NPRM. 
Specifically, IFSA states ``[t]here is no need for additional FCA's to 
provide approvals. If PHMSA would modify their current approval 
process, then all of PHMSA cost, performance, and safety goals can be 
met.'' IFSA suggests that PHMSA change the current approval document to 
a checklist format with a certification signature. This checklist would 
consist of simple ``Yes'' or ``No'' validations to indicate that the 
device meets all of the requirements of APA Standard 87-1. This 
checklist application, it maintains, will eliminate the current typical 
issues of math and spelling errors, which cause the vast majority of 
PHMSA rejections. IFSA proposes that if PHMSA were to accept this 
proposed checklist approval document, a cost savings of $26 million

[[Page 42462]]

per year could be realized by the fireworks industry.
    As mentioned above, PHMSA has conducted an intensive retrospective 
review of the fireworks approval program and, prior to drafting this 
rulemaking, PHMSA evaluated multiple options to improve the fireworks 
approval program including options similar to that proposed by IFSA. 
PHMSA appreciates IFSA's suggestion; however, based on our review, the 
changes in this final rule will result in the most desirable long-term, 
sustainable, and safe solution. PHMSA has not verified the IFSA figure 
of $26 million per year savings for the firework industry, but 
questions whether the proposed checklist alone would have such a large 
impact. In addition, we do not believe that a checklist, with yes or no 
questions provides adequate oversight to the Division 1.4G consumer 
fireworks classification process. PHMSA believes that each fireworks 
manufacturer will individually consider its businesses' potential to 
benefit from expedited processing against the expected costs of this 
certification fee. Comments to the NPRM indicate that most 
manufacturers are of the opinion that the expedited processing of 
fireworks certifications outweighs the expected costs of the 
certification fees.

II. Amendments Adopted in Final Rule

    Based on the August 30, 2012, NPRM, and comments received, this 
final rule adopts an alternative option for Division 1.4G consumer 
fireworks in which manufacturers may submit applications for 
certification to an FCA, in lieu of submitting applications for 
approval to PHMSA. To ensure oversight of FCAs, this final rule 
includes reporting and recordkeeping requirements. Additionally, PHMSA 
defines consumer fireworks and clarifies the approval process for 
designation as an FCA. The differences between this final rule and the 
NPRM include: removing the requirement that an FCA must physically 
examine a firework device; clarifying the FCA certification process; 
reformatting the certification process for other DOT-approved agencies; 
removing the requirement that an FCA must be inspected by PHMSA prior 
to approval; adding preamble discussion regarding the information that 
will be contained in the FCA approval documentation issued by PHMSA; 
revising the alpha-numeric scheme for fireworks certified by FCAs; and 
clarifying the content of the approval issued by PHMSA for designation 
as an FCA.
    The following is a summary of the amendments PHMSA is adopting in 
the final rule.
     Section 107.401 is amended to include Division 1.4G 
consumer fireworks.
     Section 107.402 paragraphs (a) and (b) are amended to 
clarify the application process for designation as a certification 
agency.
     Section 107.402 paragraph (c) is amended to specify the 
application procedure to become a third-party packaging certification 
agency.
     Section 107.402 paragraph (d) is added to specify the 
application procedure to become a designated fireworks certification 
agency and a renewal process is established for such agencies.
     Section 107.402 paragraph (e) is added to specify the 
application procedure to become a designated lighter certification 
agency.
     Section 107.402 paragraph (f) is added to specify the 
application procedure to become designated portable tank and MEGC 
certification agencies.
     Section 107.403 paragraph (c) is amended to clarify the 
procedures for reconsideration and appeal.
     Section 107.403 paragraph (d) is added to clarify where to 
find the conditions under which the Associate Administrator may modify, 
suspend or terminate an approval.
     Section 171.8 is revised to define the term ``FC number.''
     The listing for Fireworks, Division 1.4G in Sec.  172.101, 
the Hazardous Materials Table, column (7), is amended to refer to new 
Special Provision 200.
     Special Provision 200 is added to state that Division 1.4G 
consumer fireworks may be certified by a DOT-approved FCA in accordance 
with the provisions of Sec.  173.65.
     Sections 172.320(b) and 172.320(d) are amended to allow 
for firework certification (FC) numbers issued by Firework 
Certification Agencies (FCAs) in lieu of EX numbers issued by PHMSA.
     Section 173.56(b) is amended to except new fireworks 
devices meeting the criteria in new Sec. Sec.  173.64 and 173.65 from 
the specified requirements for examining, classifying and approving new 
explosives.
     Section 173.56(b)(1) is amended to indicate EX numbers 
will be issued to all new explosives by the Associate Administrator, 
except for Division 1.4G consumer fireworks, which may be issued EX 
numbers by the Associate Administrator or FC numbers issued by an FCA 
as set forth in Sec.  173.65.
     A definition for ``consumer fireworks' is added in Sec.  
173.59.
     Section 173.64 is added and the current exception, in 
Sec.  173.56(j), for Divisions 1.3 and 1.4 fireworks to be offered for 
transportation if they are manufactured in accordance with APA Standard 
87-1 and pass a thermal stability test, is moved to this section.
     Section 173.65 is added to provide a new exception for 
Division 1.4 G consumer fireworks manufacturers, or designated U.S. 
agents on behalf of a foreign manufacturer, to apply for certification 
through an FCA.

III. Section-by-Section Review

    The following is a section-by-section review of the amendments 
proposed in the August 30, 2012 NPRM, the comments received in response 
to those amendments and the modified amendments adopted in this final 
rule.

Part 107

    Part 107 subpart E sets forth procedures for persons seeking 
approval to serve as a certification agency, including lighter 
certification agencies, which certify lighter designs, UN third-party 
packaging certification agencies, which test packaging for compliance 
with UN recommendations, and independent inspection agencies, which 
evaluate and certify cylinder manufacturers. PHMSA is revising subpart 
E of part 107 to clarify the approval process and requirements for new 
and existing certification agencies and establish alternative 
procedures used to review and certify Division 1.4G consumer fireworks.
    In the NPRM, to clarify and provide consistency in the procedural 
process for designation as a certification agency, the subpart E 
heading was proposed to be retitled ``Designation of Certification 
Agencies.'' PHMSA received no comments on the title change, thus in the 
final rule PHMSA is adopting the title change as proposed.
Section 107.401
    Section 107.401 provides the purpose and scope of the designation 
of certification agencies. In the NPRM published under this docket no 
modifications were proposed to Sec.  107.401; however, PHMSA did 
propose other revisions to procedural regulations pertaining to 
certification agencies. In this final rule PHMSA is modifying Sec.  
107.401 paragraph (a) to reflect revisions to procedures pertaining to 
certification agencies found in Sec.  107.402. These revisions are 
editorial in nature and simply denote the types of certification 
agencies PHMSA currently approves (i.e., packagings, lighters, portable 
tanks, multiple-element gas containers (MEGC)s, and Division 1.4G 
consumer fireworks).

[[Page 42463]]

Section 107.402
    In the NPRM, PHMSA proposed modifications to part 107 subpart E to 
address the requirements of certification agencies. No new application 
requirements specific to any certification agencies were proposed in 
the NPRM. Specifically, PHMSA proposed that:
     The words ``as an approval or'' would be removed from 
Sec.  107.402.
     General application requirements for designation as a 
certification agency would be moved to Sec.  107.402(b);
     Application requirements specific to Packaging 
Certification Agencies and Lighter Certification Agencies would be 
moved to Sec.  107.402(c); and
     Application requirements specific to Fireworks 
Certification Agencies would be provided in Sec.  107.402(d).
    PHMSA did not receive comments on the words ``as an approval or'' 
being removed from Sec.  107.402 therefore this editorial change was 
adopted. Although PHMSA did not receive comments on the formatting of 
Sec.  107.402, for the purposes of clarity in the final rule, PHMSA is 
adopting a modified structure of Sec.  107.402. Specifically, the 
adopted text identifies each type of certification agency PHMSA 
currently authorizes. These revisions are editorial in nature and 
simply list the certification agencies PHMSA currently approves (i.e., 
packagings, lighters, portable tanks, MEGCs, and Division 1.4G consumer 
fireworks). In this final rule, paragraphs (a) and (b) are revised to 
provide general application requirements for designation as a 
certification agency.
    This final rule adopts additional editorial changes to the format 
of Sec.  107.402. Specifically, the application requirements specific 
to UN Third Party Packaging Certification Agencies are provided in 
Sec.  107.402(c). The application requirements specific to Lighter 
Certification Agencies are specified in Sec.  107.402(e). The 
application requirements specific to Portable Tank and MEGC 
Certification Agencies are specified in Sec.  107.402(f). No new 
application requirements specific to UN Third Party Packaging 
Certification Agencies, Lighter Certification Agencies, or Portable 
Tank and MEGC Certification Agencies were added and this is simply a 
formatting change.
    In the NPRM, PHMSA proposed modifications to part 107 subpart E to 
address the parameters of becoming an FCA. Specifically, the proposed 
amendments specified in Sec.  107.402(d) stated that to be considered 
an FCA, an applicant would be required to submit an application with 
procedures it will use to review and certify Division 1.4G consumer 
fireworks, and PHMSA would review the applicant's procedures to 
determine whether they are adequate to certify compliance with APA 
Standard 87-1 and whether they provide a certification process 
equivalent to the current approval process. Specifically, the proposed 
language in Sec.  107.402(d) required ``[a] statement that the 
applicant will perform its functions independent of the manufacturers, 
transporters, importers, and owners of the fireworks.'' AFSL expressed 
its concern with this proposed language. AFSL contends that:

    This expertise is possessed by independent organizations like 
AFSL, as well as the independent testing organizations retained by 
AFSL to conduct fireworks testing . . . AFSL, for example, is an 
independent, 501(c)(3) corporation whose primary purpose is to 
improve the quality and safety of fireworks distributed or used in 
the U.S. marketplace. Although members of the fireworks industry are 
represented on the AFSL Board of Directors, AFSL is not financially 
dependent, controlled, or owned either in whole or in part by any 
entity that manufactures, transports, or imports fireworks. AFSL 
offers the only independent third-party testing and certification 
service for manufacturers and importers to ensure that their 
products comply with state of the art technical requirements for 
fireworks. AFSL standards, developed by the independent AFSL 
Standards Committee comprised of representatives from the fireworks 
industry, federal and state regulatory authorities, consumers, and 
technical experts, incorporate all CPSC and DOT fireworks 
regulations, as well as provisions that go above and beyond the 
federal regulations to further improve safety and ensure good 
manufacturing practices for producing consistent, high quality 
fireworks products.

    The intent of the language in Sec.  107.402(d) is to ensure that 
entities that evaluate and certify fireworks are technically competent 
to perform the prescribed functions, and free from undue influence by 
persons who manufacture, own, transport or cause transportation, of 
firework devices. This is consistent with the current requirements for 
all other independent certification agencies.
    International Technical and Quality Services Limited noted that in 
the NPRM we neglected to mention if an FCA would be required to 
periodically renew its authority with PHMSA. PHMSA does intend to 
establish a renewal process for FCAs. Consistent with other 
authorization time periods for third-party certification agencies, such 
as explosive labs, lighter labs, and independent inspection agencies, 
we will establish a renewal period for FCAs in each separate FCA 
approval to ensure that FCAs continue to meet the criteria set forth in 
part 107, subpart E; however, FCA approvals are generally expected to 
be issued with a maximum five-year renewal period.
    In the NPRM we proposed that before an FCA is approved, it would 
have to successfully complete a facility inspection performed by PHMSA. 
This requirement was designed to ensure that the FCA is capable of 
physically examining a firework device. International Technical and 
Quality Services Limited asked who would bear the cost of such 
inspections. In this final rule, we are removing the proposed 
requirement that FCAs physically examine a sample device (see the 
review of part 173) and, therefore, we do not believe there is a need 
for a facility inspection as a requirement to be approved as an FCA. 
For this reason, we are not including pre-approval inspections as a 
requirement to become an approved FCA in this final rule. We anticipate 
that inspections of FCAs will be added to our overall field operations 
inspection program. Since we are not requiring pre-approval inspections 
of an FCA, FCAs will not incur costs for those inspections.
    In the NPRM, we proposed that the FCA applicant would be required 
to submit an application with all procedures it will use to review and 
certify Division 1.4G consumer fireworks. We stated that these 
procedures would be designed by the applicant, but that PHMSA would 
review the applicant's procedures to determine whether they are 
adequate to certify compliance with the APA Standard 87-1 and whether 
the FCA certification process provides an equivalent oversight as the 
PHMSA explosives approval process.
    AFSL and APA stated that the procedures developed by AFSL to test 
consumer fireworks for compliance with AFSL's voluntary fireworks 
safety standards would be an ideal model for developing criteria for 
FCAs. Standards developed by AFSL's Standards Committee incorporate 
CPSC and DOT performance and labeling requirements. Also, the Committee 
developed provisions above and beyond the Federal regulations to 
further improve safety and provide good manufacturing practices for 
producing consistent, high quality products. As we are not requiring 
FCAs to physically examine a firework device as part of the 
certification process in this final rule, we do not believe it is 
necessary to establish a rigid set of criteria for FCA procedures; 
however, we will require the FCA to submit standard operating

[[Page 42464]]

procedures with their approval application, which PHMSA will review to 
ensure that each FCA is capable of performing review and certification 
that is equivalent to the current PHMSA approval process.
    As mentioned above, although not explicitly stated, it is expected 
these procedures would include an FCA's proposed manner of handling 
denials and rejections of manufacturer or a foreign manufacturer's 
designated U.S. agent's application requests. Further, as the FCA 
certification process is designed to parallel the current approvals 
process, PHMSA anticipates that denial and reconsideration procedures 
would be analogous to those provided for DOT-issued approvals specified 
in Sec.  107.715.
    While we indicated in the NPRM that the required FCA qualifications 
would be detailed in each FCA approval, in response to International 
Technical and Quality Services Limited's comment that ``[i]t is 
suggested that detailed and specific requirements and procedures are 
drawn up in order to standardize the work done by different FCAs in the 
market,'' in addition to the general application requirements for a 
certification agency specified in Sec.  107.402(b), in this final rule 
we detail specific requirements in Sec.  107.402(d). The FCA applicant 
must meet the following requirements:
     Be a U.S. citizen, or have a designated U.S. agent 
representative as specified in Sec.  105.40;
     Employ personnel with work experience in manufacturing or 
testing of Division 1.4G consumer fireworks; or a combination of work 
experience in manufacturing or testing of Division 1.4G consumer 
fireworks and a degree in the physical sciences or engineering from an 
accredited university;
     Have the ability to:
    [cir] Review design drawings, and applications to certify that they 
are in accordance with the APA Standard 87-1; and
    [cir] Verify thermal stability test procedures and results.
     Must be independent of and not owned by any consumer 
fireworks manufacturer, distributor, import or export company, or 
proprietorship; and
     Submit an application that includes the following 
information:
    [cir] Name, address, and country of each facility where Division 
1.4G consumer fireworks applications are reviewed and certified;
    [cir] Detailed description of the qualifications \6\ of each 
individual the applicant proposes to employ to review, and certify that 
the requirements specified in part 173 and the APA Standard 87-1 have 
been met.
---------------------------------------------------------------------------

    \6\ While the regulations will not specify exact qualifications, 
applicants should have either work or educational experience, or a 
combination thereof, with regard to fireworks.
---------------------------------------------------------------------------

    [cir] Written operating procedures to be used by the fireworks 
certification agency to review, and certify that a Division 1.4G 
consumer fireworks application meets the requirements specified in the 
APA Standard 87-1;
    [cir] Name, address, and principal business activity of each person 
having any direct or indirect ownership interest in the applicant 
greater than three percent, and any direct or indirect ownership 
interest in each subsidiary or division of the applicant; and
    [cir] A statement that the applicant will perform its functions 
independent of the manufacturers, transporters, importers, and owners 
of the fireworks.
    As with approvals issued to other third-party certification 
agencies, in addition to the information required in Sec.  107.402(d), 
the FCA approval documentation issued by PHMSA to the FCA will include 
additional information detailing operational requirements. PHMSA may 
also include additional information on the FCA approval documentation 
as needed. The FCA approval documentation will include:
     The FCA's unique identifier;
     Requirements for the periodic renewal of an FCA;
     Details regarding the submission process and method of 
transmitting FCA certifications to PHMSA;
     Instructions on issuance of FCs, including unique 
identifier sequence and tracking numbers;
     Recordkeeping requirements specific to the FCA.
     Qualifications of each employee conducting FCA reviews; 
and
     Procedures to notify PHMSA in the event of operational 
changes or modifications (i.e., reporting changes in employment status, 
hiring of new personnel or changes to standard operating procedures).
Section 107.403
    In the NPRM, PHMSA proposed the word ``approval'' would be replaced 
with ``certification'' in the Sec.  107.403 heading. PHMSA received no 
comments on the title change thus in the final rule, PHMSA is adopting 
the title change as proposed.
    In the NPRM, PHMSA proposed that if an applicant is denied 
designation as an FCA, that it may request that PHMSA reconsider the 
denial in accordance with Sec.  107.403(c). This is consistent with the 
procedural requirements of subpart H of part 107. Further, we proposed 
a new subparagraph (d) to be added to Sec.  107.403 to reference the 
regulations pertaining to modification, suspension, and termination of 
approvals. In this final rule, we have revised Sec.  107.403(c) to 
further clarify that a certification agency applicant would be afforded 
the same reconsideration and appeal process as all other applicants 
seeking approvals. New subparagraph (d) is adopted as proposed in the 
NPRM.
Section 107.404
    No changes were proposed to Sec.  107.404; therefore, this section 
remains unchanged.
Section 107.405
    Section 107.405 was proposed to be deleted and reserved. PHMSA 
received no comments on these changes therefore the amendments will be 
adopted as proposed.

Part 171

Section 171.8 Definitions and Abbreviations
    In the NPRM, we proposed to define the term ``FX number'' in Sec.  
173.65. In this final rule we are revising ``FX' to ``FC'' (see the 
review of part 173) and moving the definition of `FC number'' to the 
more appropriate Sec.  171.8, which provides definitions and 
abbreviations. This is consistent with how PHMSA has defined ``EX 
number.''

Part 172

Section 172.101 Hazardous Materials Table and Sec.  172.102 Special 
Provisions
    In the NPRM, an amendment was proposed to the Hazardous Materials 
Table (HMT; Sec.  172.101), column (8A), to reference the new Sec.  
173.65. PHMSA has concluded that it is more appropriate to add a 
special provision to the HMT, column (7), as Sec.  173.65 does not 
provide an exception from regulations as column (8A) implies, rather it 
provides an alternative certification method for Division 1.4G consumer 
fireworks. PHMSA is revising the listing for Division 1.4G, Fireworks 
in Sec.  172.101, the HMT, column (7), to refer to new Special 
Provision 200 and concurrently establishing Special Provision 200 in 
Sec.  172.102 to indicate that Division 1.4G consumer fireworks may be 
certified by a DOT-approved FCA in accordance with the provisions of 
Sec.  173.65. PHMSA did not receive any comments on the proposed 
amendment.
Section 172.320
    In the NPRM, PHMSA proposed revising Sec.  172.320(b) to indicate 
that

[[Page 42465]]

each package containing Division 1.4G consumer fireworks certified in 
accordance with Sec.  173.65, must be marked with a FX number issued by 
a fireworks certification agency in lieu of an EX Number. Furthermore 
PHMSA proposed revising Sec.  172.320(d) to indicate if the FX number 
of each explosive item described under a proper shipping description is 
shown in association with the shipping description required by Sec.  
172.202(a) of this part, that the requirements of Sec.  172.320 do not 
apply.
    We received no comments on these revisions and, therefore, PHMSA is 
revising Sec.  172.320(b) to indicate that each packaging containing 
Division 1.4G consumer fireworks certified in accordance with Sec.  
173.65, must be marked with an FC number issued by a FCA in lieu of an 
EX number. Furthermore, we are also revising Sec.  172.320(d) to 
indicate if the FC number of each explosive item described under a 
proper shipping description is shown in association with the shipping 
description on a shipping paper required by Sec.  172.202(a) of this 
part, that the requirements of Sec.  172.320 do not apply. These 
changes provide consistency with the current hazard communication 
requirements for other explosives and reflect the change from FX to FC 
number that is described in more detail below.

Part 173

    The requirements for the classification and packaging of Class 1 
explosive materials are specified in part 173, subpart C of the 49 CFR. 
Fireworks are considered a Class 1 explosive material and must be 
classed under one of five hazard Divisions and compatibility groups 
(1.1G, 1.2G, 1.3G, 1.4G, and 1.4S). As currently specified in the HMR, 
prior to transportation into, out of, and within the United States, all 
explosives, including fireworks, must be approved and assigned a 
classification by PHMSA based on actual testing. Alternatively, 
Divisions 1.3 and 1.4 fireworks may be approved in accordance with the 
APA Standard 87-1.
Section 173.56
    In the NPRM, we proposed moving the current requirements of Sec.  
173.56(j), which authorize Divisions 1.3 and 1.4 fireworks and 1.4 
articles, pyrotechnic, to be classed and approved by the Associate 
Administrator without prior examination and offered for transportation 
if the device is manufactured in accordance with the APA Standard 87-1 
and passes a thermal stability test, to a stand-alone new Sec.  173.64 
entitled ``Exceptions for Division 1.3 and 1.4 fireworks.'' 
Furthermore, PHMSA proposed to modify paragraph (b) of Sec.  173.56 to 
replace the references to paragraph (j) with references to the new 
Sec.  173.64. PHMSA did not receive specific comments on the proposed 
changes; thus, we are adopting the amendments as proposed.
Section 173.59
    In the NPRM, PHMSA proposed to add a definition for ``consumer 
firework'' to Sec.  173.59. Specifically, in the NPRM we proposed that 
a consumer firework was:

    Any completed firework device that is packaged in a form 
intended for use by the public that complies with the construction, 
performance, chemical composition, and labeling requirements 
codified by the U.S. Consumer Product Safety Commission in Title 16, 
CFR Parts 1500 and 1507. A consumer firework does not include 
firework devices, kits or components banned by the U.S. Consumer 
Product Safety Commission in 16 CFR 1500.17(a)(8).

    Since PHMSA did not receive any comments on the definition, we are 
adopting the amendment as proposed, with minor editorial corrections.
Section 173.64
    In the NPRM, PHMSA proposed revising and moving the current 
requirements of Sec.  173.56(j) to a stand-alone new Sec.  173.64 
entitled ``Exceptions for Division 1.3 and 1.4 fireworks.'' As PHMSA 
did not receive any comments on this amendment specifically, we are 
adopting the amendment with minor edits.
Section 173.65
    In the NPRM, PHMSA proposed to establish new Sec.  173.65, to allow 
manufacturers to apply for a firework certification from an FCA as an 
alternative to the PHMSA approval process for Division 1.4G consumer 
fireworks. In the NPRM we proposed that the process for FCA 
certification of a device would require the device to be manufactured 
in accordance with the APA Standard 87-1, pass a thermal stability 
test, and be physically examined by the FCA.
    APA, AFSL, Fireworks Over America and Next FX and Stage FX 
supported the concept of a physical examination of a sample to 
determine the per-tube and total per-device weights of pyrotechnic 
composition and verify that the device meets the requirements in the 
APA Standard 87-1 for classification as Fireworks 1.4G, UN0336. 
However, all commenters in favor of physical examination indicated that 
we need to make clear if the examination requires qualitative chemical 
analysis.
    Kellner's Fireworks Inc., and the NFA opposed the requirement for 
physical examination of the firework device. Kellner stated that:

    Currently PHMSA only looks at a chemical composition sheet to 
determine that all of the chemicals used in an item are in 
compliance with APA 87-1. Requiring a full chemical analysis only 
adds another time consuming process to the procedures for obtaining 
an EX number.

The NFA stated:

    The requirement that samples must be supplied to the FCAs in 
addition to the paper Application Form in no way streamlines the 
application process and only adds an additional meaningless burden 
on the manufacturer since the submitted sample would not necessarily 
represent accurately a production version of the product.
    The requirement of samples also means that FCAs could not be 
established in the USA as it would be impossible to ship physical 
live samples for inspection without an EX number already in place. 
This regulation would take jobs away from the domestic market and 
even if a variance was established the cost to ship samples from 
China would be prohibitive and as noted already, it is questionable 
whether the samples would truly represent production made products.

    The intent of the proposed requirement was to help ensure that the 
per-tube and total per-device weights of pyrotechnic composition of a 
Division 1.4G consumer firework complied with the APA Standard 87-1. 
However, PHMSA agrees with Kellner and the NFA that the proposed 
language does little but add an unnecessary and time-consuming 
requirement to the certification process. Therefore, in this final rule 
PHMSA is removing the condition that the device must be physically 
examined under the FCA certification process. The removal of this 
proposed requirement more closely aligns the FCA certification process 
with the current PHMSA approval process for Division 1.4G consumer 
fireworks, providing consistency between the two methods, and reducing 
potential confusion.
    In the proposed Sec.  173.65(a) we also set forth a numbering 
scheme to discern EX approvals from FCA certifications. We proposed 
that firework devices certified by FCAs are assigned an ``FX'' number. 
Given the long history and wide recognition of the EX numbering scheme, 
in the NPRM PHMSA sought specific comments on the supply chain 
implications, the economic impact, and safety concerns associated with 
the proposed FX numbering system, as well as comments on how to 
implement the changes if they are adopted. A number

[[Page 42466]]

of commenters indicated that the use of ``FX'' would cause confusion. 
Next FX and Stage FX, and the Alliance of Special Effects & Pyrotechnic 
Operators, Inc., noted that in the fireworks industry, ``FX'' is used 
as an abbreviation for term ``effects.'' APA suggested that we include 
the letters ``EX'' in the beginning of the sequence of letters and 
numbers, stating that ``[p]eople know what the EX number signifies and 
may not understand the FX system.''
    We agree with the commenters that the letters FX may cause 
confusion. Further, we understand that that the letters ``EX'' are 
familiar to people in the fireworks supply chain; however, the 
definition of ``approval'' is ``a written authorization from the 
Associate Administrator (AA)'' and an ``EX approval'' is the approval 
designation the AA issues to explosives, including fireworks. In 
response to the comments received to the NPRM we are replacing the 
proposed ``FX'' numbering scheme, with an ``FC'' scheme to denote 
fireworks certifiers. Furthermore, we are revising the numbering scheme 
in this final rule to parallel the EX numbering scheme where the year, 
month and number of devices certified in that month are included.
    An example of an FC number would be ``FC-XXX-201301-ZZZZ,'' where 
``XXX'' represents the fireworks certification agency's unique 
identifier assigned by PHMSA, ``201301'' represents the year (i.e. 
2013) and month (i.e. 01 as January), and ``ZZZZ'' represents the 
sequential number issued that month by that specific FCA identifying a 
particular device. Again, in this final rule we are more closely 
aligning the identifier issued by an FCA with an approval issued by 
PHMSA for Division 1.4G consumer fireworks. The diagrams below 
illustrate the EX identifier for explosives approvals, and the new FC 
identifier for Division 1.4G consumer fireworks certified by FCAs.
[GRAPHIC] [TIFF OMITTED] TR16JY13.005

    In this final rule, as with the existing number scheme for EX 
numbers, the FC numbering scheme is not detailed in the HMR; however, 
it will be specified in each FCA approval. PHMSA may, in a future 
rulemaking, propose to assign ``FC'' numbers to all Division 1.4G 
consumer fireworks, regardless of whether they are certified by an FCA 
or approved by PHMSA. This would serve to separate and distinguish the 
lowest hazard fireworks from all other explosives.
    Weeth and Associates questioned the need for unique EX numbers for 
each individual firework device. They state that:

    [Th]e adoption of the UN classification system and APA Standard 
87-1 combined with a comprehensive Emergency Response Guidebook 
negates the need for unique EX numbers.

    They further state that:

    [G]iven how rare it is for a shipment to involve only one type 
of Fireworks, tracing the source of an incident with a high degree 
of certainty to one of the hundreds of Fireworks in a shipment is 
virtually impossible.

    EX approvals are written approval from PHMSA that allows a 
manufacturer to ship or transport a specific explosive device. PHMSA's 
Approvals and Permits and Field Operations Divisions rely on these 
unique identifiers to track firework devices to ensure that the device 
that was approved is the same device that is being transported. This 
method has enabled PHMSA to identify unapproved fireworks in shipments. 
Further, as the elimination of unique ``EX'' numbers was not considered 
in the NPRM, it is beyond-the-scope of this final rule.
    We received three comments from AFSL, APA, and Fireworks by Grucci, 
Inc., on the proposed recordkeeping and record retention requirements 
in Sec.  173.65(b). In the NPRM we proposed that a copy of this record 
must be retained by the FCAs, manufacturers or designated U.S. agents, 
and importers for five years after the material is imported. APA 
recommended that the record retention period proposed in the NPRM be 
extended to the life of the product. APA states:


    Many consumer fireworks have a shelf life of far more than five 
years, justifying a longer record retention period. Furthermore, the 
APA does not expect that an extended record retention period would 
impose any undue burden on applicants. Furthermore, in the case of a 
manufacturer that must reapply for device approvals that have 
expired, the expiration has no impact on downstream transporters or 
users. Because the life of the product extends beyond five years, 
the APA recommends that the record retention period be equal to the 
life of the product.

    We agree with APA that the records should be available for the life 
of the product; however, requiring an FCA or fireworks manufacturer or 
importer to maintain records for Division 1.4G consumer fireworks for 
an indefinite period after their function in the transportation stream 
is complete would be counter to our expressed goal to ease the overall 
industry burden for transporting Division 1.4G consumer fireworks. 
While manufacturers are accountable for ensuring that the device that 
is transported is represented by the unique identifier accompanying the 
shipment, we believe that the five-year retention period is sufficient 
for the manufacturer recordkeeping requirements, as well as the FCA and 
importer recordkeeping requirements. PHMSA notes that FCAs, 
manufacturers or foreign manufacturers' designated U.S. agents, and 
importers are permitted to keep records indefinitely if they so choose. 
Furthermore, as with PHMSA's current practice of retaining approval 
documentation indefinitely, PHMSA will retain FCA certification records 
indefinitely.
    In this final rule we are adopting the recordkeeping requirements 
specified in Sec.  173.65(b) as proposed in the NPRM for firework 
manufacturers and importers; however, we removing reference to the 
recordkeeping requirement for FCAs.

[[Page 42467]]

Although the recordkeeping requirement for FCAs will be consistent with 
those of firework manufacturers and importers, we will specify the 
recordkeeping requirements for each FCA in each separate FCA approval. 
PHMSA believes the FCA approval document is a more appropriate location 
for the FCA recordkeeping requirements than the HMR as the approval 
will provide the operational requirements for the FCA. Furthermore, 
each FCA approval will note that the FC certification for each firework 
device is to be provided by the manufacturer to any subsequent importer 
of the certified firework device and be accessible at or through its 
principal place of business and be made available, upon request, to the 
Associate Administrator or designated official.
    PHMSA believes this record retention period will provide a 
mechanism for confirmation of shipments of Division 1.4G consumer 
fireworks throughout the supply chain. During that five-year period, 
the certification record must be made available to a representative of 
PHMSA upon request. In addition, FCAs must submit all applications and 
certification data provided by the manufacturers to PHMSA as stipulated 
in the FCA approval documentation issued by PHMSA to the FCA.
    AFSL and Fireworks by Grucci, Inc., both suggest that we clarify 
our recordkeeping requirements to require that records that are stored 
electronically must have DOT-review capability. AFSL indicated that it 
maintains a database that is accessible to CPSC so that they may easily 
verify importer compliance with the requirement without the need to 
contact individual companies directly and that ``a simple modification 
of that database would allow AFSL to store documents that could be 
accessible to DOT through a password-protected portal.'' AFSL stated:

    This database would be accessible by AFSL member companies as 
well as DOT (and CPSC) personnel, and should thereby provide a 
significant paperwork and record-keeping reduction benefit for our 
members, as well as a time-saving and useful source of information 
for DOT at very minimal additional cost.

    AFSL suggests that a database of FCA certifications be established 
and maintained. Further, AFSL suggests that the database should permit 
FCAs to upload certificates of compliance, indicating that fireworks 
are certified to meet the requirements of Sec.  173.65, similar to the 
current database maintained by AFSL for the CPSC.
    PHMSA agrees that such an electronic system that is uniform and 
easily accessible would provide benefits. However, PHMSA is concerned 
that the system described by AFSL would lead to the use of multiple 
systems that would create confusion and a burden for both the regulated 
community and the Federal government. PHMSA appreciates AFSL's offer to 
expand their current capabilities with the CPSC to PHMSA; however, 
PHMSA is not requiring FCAs to maintain records in the manner described 
by AFSL. Rather, as with other third-party certification agency 
approvals, the approval provided by PHMSA to the FCA will delineate the 
manner in which documents must be submitted to PHMSA. Required 
documents will include the FCA certification indicating that the 
firework device complies with Sec.  173.65, the manufacturer's signed 
and certified application, relevant background data, and copies of all 
applicable drawings, and test results for each device certified by the 
FCA. A PHMSA-operated system would ensure information security of PHMSA 
information technology infrastructure, provide PHMSA the ability to 
modify the system as needed, and allow PHMSA to ensure all information 
posted to the database is accurate. As with EX approvals, PHMSA plans 
to publish FC certifications on our Web site as they become valid, to 
provide public access.
    As described above, the database and the manner in which an FCA 
provides the required documentation will be detailed in each FCA 
approval. We are further clarifying in this final rule that the FCA 
certification is not valid until it has been provided to PHMSA and the 
FCA has received an acknowledgement from PHMSA. Once the FCA receives 
acknowledgement from PHMSA, the FCA's unique FC identifier that is 
traceable to the specific device will be valid.
    In the NPRM, recordkeeping requirements proposed included the 
following information: (1) The FX number unique to the FCA that 
certified that the firework device complies with APA Standard 87-1, 
including a certification report identifier that is traceable to the 
manufacturer and specific firework device transported; (2) a copy of 
the approval application submitted to the DOT-approved fireworks 
certification agency; and (3) a copy of any certification documentation 
completed by the fireworks certification agency in accordance with the 
DOT-approved procedures. PHMSA did not receive any comment on this 
section; however, upon further review, PHMSA is simplifying the 
recordkeeping requirements for importers and manufacturers or foreign 
manufactures' designated agents. Specifically, importers and 
manufacturers, or foreign manufactures' designated agents, will only be 
required to retain the certification document issued by the FCA for 
each Division 1.4G consumer firework certified under Sec.  173.65(a).
    As a condition of the DOT approval, the FCA will be required to 
retain (1) The certification document issued by the FCA; (2) a copy of 
the certification application submitted to the DOT-approved FCA; and 
(3) a copy of any certification documentation completed by the 
fireworks certification agency in accordance with the DOT-approved 
procedures. Further, in this final rule, in Sec.  173.65(a)(iv) we are 
instructing manufacturers whose application is denied by an FCA that 
they may seek reconsideration from the FCA or may appeal the 
reconsideration decision to PHMSA's Administrator.
    In the NPRM, hazard communication requirements for Division 1.4G 
consumer fireworks were proposed to be specified in paragraph (c) of 
the new Sec.  173.65. PHMSA did not receive any comment on this 
section. However, after further consideration PHMSA is not adopting the 
communication requirements in Sec.  173.65 because Sec.  173.65 does 
not provide any relief from subparts D and E of part 172 and, 
therefore, it is redundant to indicate that Division 1.4G consumer 
firework must be marked and labeled in accordance with subpart D and E 
of part 172.
    The following diagrams show the two alternative processes.

[[Page 42468]]

[GRAPHIC] [TIFF OMITTED] TR16JY13.006

Effective Date of the Rule

    In the NPRM published under this docket number, PHMSA requested 
comment on how to implement the changes if they are adopted. In 
response to this request PHMSA received comments from the APA, 
Fireworks Over America and Melrose Pyrotechnic requesting that we 
implement proposed amendments quickly. Specifically, comments requested 
that PHMSA expedite the effective date of the rule. Fireworks Over 
America stated ``We feel that it is imperative that the rule be adopted 
as soon as possible to eliminate the problems that we incur daily with 
the existing procedure.''
    PHMSA understands that the fireworks industry would like to use the 
alternative process as soon as possible. For this reason, we are 
establishing an effective date of thirty days after the publication of 
this final rule. However, although PHMSA will accept FCA approval 
applications as of that effective date, PHMSA will require time to 
review the applications, once received, to ensure that any prospective 
FCA meets the criteria set forth in this rule. Furthermore, PHMSA 
anticipates that initial submissions of FCA approval applications may 
need to be modified as FCAs become familiar with new requirements. Once 
an FCA is approved by PHMSA, an FCA may begin to certify firework 
devices and issue FC numbers. Also, PHMSA intends to update the current 
guidance available on our Web site with respect to the approval/
certification process and the transportation of fireworks to include 
information regarding the FCA process.

[[Page 42469]]

IV. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule is published under the authority of the Federal 
Hazardous Materials Transportation Law, 49 U.S.C. 5101 et seq. Section 
5103(b) authorizes the Secretary to prescribe regulations for the safe 
transportation, including security, of hazardous material in 
intrastate, interstate, and foreign commerce. This rule provides an 
alternative to the current process for approving Division 1.4G consumer 
fireworks more quickly and efficiently, without compromising safety. 
Furthermore, section 5120(b) authorizes the Secretary of Transportation 
to ensure that, to the extent practicable, regulations governing the 
transportation of hazardous materials in commerce are consistent with 
standards adopted by international authorities.

B. Executive Order 13610, Executive Order 13563, Executive Order 12866, 
and DOT Regulatory Policies and Procedures

    This rulemaking is considered a non-significant regulatory action 
under Executive Order 12866 and the Regulatory Policies and Procedures 
of the Department of Transportation (44 FR 11034).
    Executive Order 13610 (Identifying and Reducing Regulatory Burdens) 
reaffirmed the goals of Executive Order 13563 (Improving Regulation and 
Regulatory Review) issued January 18, 2011, and Executive Order 12866 
(Regulatory Planning and Review) issued September 30, 1993. Executive 
Order 13610 directs agencies to prioritize ``those initiatives that 
will produce significant quantifiable monetary savings or significant 
quantifiable reductions in paperwork burdens while protecting public 
health, welfare, safety, and our environment.'' Executive Order 13610 
further instructs agencies to give consideration to the cumulative 
effects of their regulations, including cumulative burdens, and 
prioritize reforms that will significantly reduce burdens.
    Executive Order 13563 is supplemental to and reaffirms the 
principles, structures, and definitions governing regulatory review 
that were established in Executive Order 12866 Regulatory Planning and 
Review of September 30, 1993. In addition, Executive Order 13563 
specifically requires agencies to: (1) Involve the public in the 
regulatory process; (2) promote simplification and harmonization 
through interagency coordination; (3) identify and consider regulatory 
approaches that reduce burden and maintain flexibility; and (4) ensure 
the objectivity of any scientific or technological information used to 
support regulatory action; consider how to best promote retrospective 
analysis to modify, streamline, expand, or repeal existing rules that 
are outmoded, ineffective, insufficient, or excessively burdensome.
    PHMSA has evaluated our fireworks approval program for 
effectiveness and identified areas that could be modified to enhance 
the program and increase flexibility for the regulated community while 
maintaining the current level of safety. In this final rule, the 
amendments to the HMR will not impose increased compliance costs on the 
regulated industry. By amending the HMR to allow for an alternative to 
the approval process for Division 1.4G consumer firework devices, PHMSA 
is reducing regulatory burden and increasing flexibility to industry, 
while maintaining an equivalent alternative review process and 
oversight.
    A summary of the regulatory evaluation used to support the 
proposals presented in this final rule are discussed below. A copy of 
the full regulatory evaluation explaining the rationale behind PHMSA's 
conclusions is available in the docket for this rulemaking.
Regulatory Evaluation
    For the regulatory evaluation of this final rule, PHMSA assumes 
that between 25 and 90 percent of applicants will choose to file a 
Division 1.4G consumer fireworks application with an FCA instead of 
filing an application with PHMSA. Comments from the APA and AFSL 
suggested that by not incorporating by reference the most recent 
revision to APA Standard 87-1, the actual redirected rate could be much 
less than the initial estimated range used. PHMSA assumes that domestic 
manufacturers and importers of Division 1.4G consumer fireworks that 
participate in the voluntary CPSC Domestic Testing Program will choose 
certification by a DOT-approved FCA. Finally, PHMSA anticipates that 
existing DOT-approved explosive test laboratories will likely apply for 
approval as an FCA. Given the uncertainty in the number of 
manufacturers that will use this alternative and that PHMSA is not 
aware factors manufacturers will use to weigh their decisions to use 
the services of an FCA, the benefits of this rule are difficult to 
quantify.
    Current fireworks classification methods have proven effective in 
achieving a high level of transportation safety. This high level of 
transportation safety is demonstrated by the fact that over the past 40 
years no transportation incidents resulted in death or serious injury 
while transporting consumer fireworks. Although the current process for 
classification and approval of fireworks devices has a successful 
safety history, the process is not without its drawbacks. PHMSA reviews 
an average of 13,370 applications per year for approval of fireworks. 
Approximately 75% of these fireworks approvals are for Division 1.4G 
consumer fireworks devices. This high volume of applications results in 
an approximate review time of 120 days. The fireworks industry has 
voiced its frustration with aspects of the current approval process, 
specifically the time it takes to receive approval for firework 
devices. Delays in fireworks approvals can have adverse economic 
impacts on the fireworks industry such as storage costs and the 
inability to introduce new products in a seasonal market.
    This final rule allows an optional method for firework device 
manufacturers to certify their 1.4G consumer fireworks are properly 
classified for transportation using an FCA instead of PHMSA's approval 
process. Without this rulemaking, manufacturers of firework explosive 
devices will continue to be affected by additional time spent awaiting 
PHMSA adjudication on Division 1.4G consumer fireworks approval 
applications. This rulemaking will alleviate industry of some of the 
time spent, and possibly forgone sales because of added time, awaiting 
PHMSA action on applications while maintaining the current level of 
safety.
    Manufacturers will use the FCA certification option if it is net 
beneficial to do so; they will use the PHMSA approval option if it is 
not. As PHMSA is not requiring manufacturers to use an FCA, and to do 
so is completely voluntary, PHMSA is not imposing any costs. PHMSA 
estimates an FCA certification fee of between $100 and $450. Since the 
option should speed up the certification process it could reduce some 
of the uncertainty with respect to ordering and other supply chain 
issues. Those likely doing so will be ones seeking classification 
relatively closer to peak sales periods (primarily the 4th of July). If 
manufacturers plan accordingly and wait for PHMSA to issue an approval, 
they won't pay the FCA fee. The benefits for manufacturers using the 
FCA certification process to expedite shipments are difficult to 
quantify. However, we know that any rational business will not use this 
option unless it makes business sense. The complete

[[Page 42470]]

regulatory evaluation is available for review in the public docket for 
this rulemaking.

C. Executive Order 13132

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''), and 
the President's memorandum on ``Preemption'' published in the Federal 
Register on May 22, 2009 (74 FR 24693). This rule will preempt State, 
local, and Indian tribe requirements but does not contain any 
regulation that has substantial direct effects on the States, the 
relationship between the national government and the States, or the 
distribution of power and responsibilities among the various levels of 
government. Therefore, the consultation and funding requirements of 
Executive Order 13132 do not apply.
    The Federal hazardous materials transportation law, 49 U.S.C. 5101-
5128, contains an express preemption provision (49 U.S.C. 5125 (b)) 
that preempts State, local, and Indian tribe requirements on the 
following subjects:
    (1) The designation, description, and classification of hazardous 
materials;
    (2) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous materials;
    (3) The preparation, execution, and use of shipping documents 
related to hazardous materials and requirements related to the number, 
contents, and placement of those documents;
    (4) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material; and
    (5) The design, manufacture, fabrication, marking, maintenance, 
recondition, repair, or testing of a packaging or container 
represented, marked, certified, or sold as qualified for use in 
transporting hazardous material.
    This rule addresses all the covered subject areas above and will 
preempt any State, local, or Indian tribe requirements concerning these 
subjects unless the non-Federal requirements are ``substantively the 
same'' as the Federal requirements. Furthermore, this rule is necessary 
to update, clarify, and provide relief from regulatory requirements.
    Federal hazardous materials transportation law provides at Sec.  
5125(b)(2) that, if DOT issues a regulation concerning any of the 
covered subjects, DOT must determine and publish in the Federal 
Register the effective date of Federal preemption. The effective date 
may not be earlier than the 90th day following the date of issuance of 
the final rule and not later than two years after the date of issuance. 
PHMSA has determined that the effective date of Federal preemption for 
these requirements will be thirty days from the date of publication of 
this final rule in the Federal Register.

D. Executive Order 13175

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this rule does 
not significantly or uniquely affect the communities of the Indian 
tribal governments and does not impose substantial direct compliance 
costs, the funding and consultation requirements of Executive Order 
13175 do not apply.

E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to review regulations to assess their impact on small entities 
unless the agency determines that a rule is not expected to have a 
significant impact on a substantial number of small entities. This rule 
has been developed in accordance with Executive Order 13272 (``Proper 
Consideration of Small Entities in Agency Rulemaking'') and DOT's 
procedures and policies to promote compliance with the Regulatory 
Flexibility Act to ensure that potential impacts of rules on small 
entities are properly considered.
    PHMSA expects that U.S. manufacturers and importers of consumer 
fireworks will be affected by this rulemaking and estimates that there 
are 10 consumer firework manufactures in the U.S. and between 62 and 
211 U.S. importers. The estimate of U.S. consumer firework 
manufacturers is derived from an analysis of PHMSA's registration data, 
which indicates that all U.S. consumer firework manufacturers are 
considered small businesses.
    The estimate of U.S. importers is provided as a range, which is a 
result of combining estimated import data with data provided by a 
consumer fireworks trade association. The figure of 62 was derived from 
import data gathered from a survey of fireworks experts, while the 
figure of 211 was derived from statistics available from the American 
Fireworks Safety Laboratory (AFSL), a consumer fireworks trade 
association. PHMSA assumes nearly all U.S. importers are small 
businesses. Thus, between 72 and 221 U.S. small businesses will be 
affected by this rule.
    The rule provides for an alternative method to certify Division 
1.4G consumer fireworks for transportation. This alternative method 
will require the retention of certification records by certifying 
agencies, manufacturers and importers indicating a Division 1.4G 
consumer fireworks classification has been certified in accordance with 
the regulations. The certification records will be required to be 
retained for five years and the requirements apply to FCAs, 
manufacturers that choose certification by a FCA, and importers of 
fireworks certified by a FCA.
    For consumer firework manufacturers, the alternative method is not 
mandatory and these businesses can voluntarily choose whether using an 
FCA makes economic sense for their operations. Manufacturers choosing 
this method will not be responsible for the preparation of 
certification records and no new professional skills will be needed for 
record retention.
    Foreign consumer firework manufacturers using an FCA will result in 
additional record retention requirements for consumer firework 
importers that import from these foreign manufacturers. Consumer 
firework importers will be required to retain certification records for 
five years after the importation of the product. Importers will not be 
responsible for the preparation of the report or record, thus no new 
professional skills will be needed.
    A retrospective review of the fireworks approval program that 
determined that there is a delay in the processing of EX approval 
applications under the current process was the impetus for this rule. 
The purpose of this rule is to maintain the current level of safety 
while reducing burden and increasing flexibility for the regulated 
community by providing an alternative to PHMSA's approval process. 
Benefits of the certification option will be derived from the expedited 
processing of consumer fireworks applications, resulting in faster time 
to market for each firework device. By providing increased regulatory 
flexibility, this rule should reduce the compliance burden on the 
regulated industry, including small entities, without compromising 
transportation safety.

F. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, no person is required to 
respond to an information collection unless it has been approved by OMB 
and displays a valid OMB control number. Section 1320.8(d), title 5, 
Code of Federal Regulations requires that PHMSA provide interested 
members of

[[Page 42471]]

the public and affected agencies an opportunity to comment on 
information and recordkeeping requests. Comments received from industry 
indicate that the recordkeeping requirements proposed in the NPRM were 
not unduly burdensome. PHMSA currently has an approved information 
collection under OMB Control Number 2137-0557, entitled ``Approvals for 
Hazardous Materials,'' with an expiration date of May 31, 2014. PHMSA 
will submit a request that OMB approve a revised information collection 
request to account for the recordkeeping and retention requirements in 
this rule. PHMSA has developed burden estimates to reflect changes in 
this rule and estimates that the information collection and 
recordkeeping burdens will be revised as follows:
OMB Control No. 2137-0557
    Increase in Annual Number of Respondents: 211
    Increase in Annual Responses: 5,175
    Increase in Annual Burden Hours: 430
    Increase in Annual Burden Costs: $14,875
    While this rule may result in a slight increase in the annual 
paperwork burden and cost to OMB Control Number 2137-0557 for minor 
record-keeping requirements under Sec. Sec.  173.64 and 173.65, this 
rule should result in a net benefit to the fireworks industry by 
increasing regulatory flexibility, which will provide manufacturers of 
Division 1.4G consumer fireworks with an alternative that should be 
more efficient than the current approval process.
    Requests for a copy of this information collection should be 
directed to Steven Andrews or T. Glenn Foster, Office of Hazardous 
Materials Standards (PHH-12), Pipeline and Hazardous Materials Safety 
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001, 
Telephone (202) 366-8553.

G. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

H. Unfunded Mandates Reform Act of 1995

    This rule does not impose unfunded mandates under the Unfunded 
Mandates Reform Act of 1995. It does not result in costs of $141.3 
million or more to either state, local or tribal governments, in the 
aggregate, or to the private sector, and is the least burdensome 
alternative that achieves the objective of the rule.

I. Environmental Assessment

    The National Environmental Policy Act, 42 U.S.C. 4321-4375, 
requires federal agencies to analyze proposed actions to determine 
whether the action will have a significant impact on the human 
environment. The Council on Environmental Quality (CEQ) regulations 
require federal agencies to conduct an environmental review 
considering: (1) The need for the proposed action; (2) alternatives to 
the proposed action; (3) probable environmental impacts of the proposed 
action and alternatives; and (4) the agencies and persons consulted 
during the consideration process.
    Following an intensive retrospective review of the fireworks 
approval program, PHMSA determined that there is a delay in the 
processing of EX approval applications under the current regulatory 
scheme. For this reason, PHMSA is establishing an alternative option 
for Division 1.4G consumer fireworks in which applicants will submit 
applications for certification to a Fireworks Certification Agency 
(FCA), in lieu of submitting applications for approval to PHMSA.
    Description of Action:
    Docket No. PHMSA-2010-0320 (HM-257)] Final Rule
    Adopted Amendments to the HMR:
     Section 107.401 is amended to include Division 1.4G 
consumer fireworks.
     Section 107.402 paragraphs (a) and (b) are amended to 
clarify the application process for designation as a certification 
agency.
     Section 107.402 paragraph (c) is amended to specify the 
application procedure to become a third-party packaging certification 
agency.
     Section 107.402 paragraph (d) is added to specify the 
application procedure to become a designated fireworks certification 
agency and a renewal process is established for such agencies.
     Section 107.402 paragraph (e) is added to specify the 
application procedure to become a designated lighter certification 
agency.
     Section 107.402 paragraph (f) is added to specify the 
application procedure to become designated portable tank and MEGC 
certification agencies.
     Section 107.403 paragraph (c) is amended to clarify the 
procedures for reconsideration and appeal.
     Section 107.403 paragraph (d) is added to clarify where to 
find the conditions under which the Associate Administrator may modify, 
suspend or terminate an approval.
     Section 171.8 is revised to define the term ``FC number.''
     The listing for Fireworks, Division 1.4G in Sec.  172.101, 
the Hazardous Materials Table, column (7), is amended to refer to new 
Special Provision 200.
     Special Provision 200 is added to state that Division 1.4G 
consumer fireworks may be certified by a DOT-approved FCA in accordance 
with the provisions of Sec.  173.65.
     Sections 172.320(b) and Sec.  172.320(d) are amended to 
allow for firework certification (FC) Numbers issued by Firework 
Certification Agencies (FCAs) in lieu of EX Numbers issued by PHMSA .
     Section 173.56(b) is amended to except new fireworks 
devices meeting the criteria in new Sec. Sec.  173.64 and 173.65 from 
the specified requirements for examining, classifying and approving new 
explosives.
     Section 173.56(b)(1) is amended to indicate EX numbers 
will be issued to all new explosives by the Associate Administrator, 
except for Division 1.4G consumer fireworks, which may be issued EX 
numbers by the Associate Administrator or FC numbers issued by an FCA 
as set forth in Sec.  173.65.
     A definition for ``consumer fireworks' is added in Sec.  
173.59.
     Section 173.64 is added and the current exception, in 
Sec.  173.56(j), for Divisions 1.3 and 1.4 fireworks to be offered for 
transportation if they are manufactured in accordance with APA Standard 
87-1 and pass a thermal stability test is moved to this section.
     Section 173.65 is added to provide a new exception for 
Division 1.4 G consumer fireworks manufacturers, or designated U.S. 
agents, to apply for certification through an FCA.
    Alternatives Considered:
    Alternative (1)--No action alternative: Leave the HMR as is; do not 
adopt above-described amendments.
    PHMSA periodically reviews and updates various regulations to 
improve the clarity of the HMR and provide relief for safe alternatives 
when necessary. If PHMSA chose the no-action alternative, the public 
would not receive the benefits of the alternate process for 
certification of Division 1.4G consumer fireworks, which will provide 
an equivalent level of oversight as PHMSA's approval process, while 
lessening the time to market of Division

[[Page 42472]]

1.4G consumer fireworks. Therefore, PHMSA rejected the do-nothing 
alternative.
    Alternative (2)--Allow Manufacturers to Self-certify: PHMSA 
considered allowing manufacturers to self-declare Division 1.4G 
consumer fireworks in accordance with a specified standard and require 
manufacturers to maintain records on the product design, 
classification, and thermal stability testing. This would have placed 
the burden of proof of compliance with the manufacturers and their 
designated agents.
    Though there might be cost savings to the consumer fireworks 
industry and to PHMSA by reducing the paperwork burden on the industry 
and a reduction in the costs associated with processing, reviewing, and 
maintaining thousands of approval records each year, they are likely 
outweighed by the negative safety implications of self-declaration of 
Division 1.4G fireworks (and thus the resulting social costs). The 
approach would remove a critical control that has been in place 
successfully for decades. In 2010, after implementing new processing 
procedures, over 60 percent of firework applications were initially 
denied. PHMSA's review of recent denials, where the denial was made for 
technical reasons, found numerous applications were submitted with 
potentially dangerous errors to include: firework designs with illegal 
pyrotechnic compounds; misclassified firework devices (e.g., 1.1G vice 
1.4G); and designs that did not conform with APA Standard 87-1, such as 
improper fusing and devices with electronic matches integrated, which 
is forbidden. Had the applicants been allowed to self-classify their 
designs, it is likely that misclassified and illegal fireworks would 
have been introduced into transportation and eventually used by U.S. 
consumers. These findings suggest that this alternative would not have 
served to assure safe transportation in commerce of Division 1.4G 
consumer fireworks and, as such, was rejected.
    Alternative (3)--Preferred Alternative: Go forward with the 
proposed amendments to the HMR in the NPRM with some revisions, as 
described above.
Environmental Consequences
    Hazardous materials are substances that may pose a threat to public 
safety or the environment during transportation because of their 
physical, chemical, or nuclear properties. The hazardous materials 
regulatory system is a risk management system that is prevention 
oriented and focused on identifying a safety hazard and reducing the 
probability and quantity of a hazardous material release. Hazardous 
materials are categorized by hazard analysis and experience into hazard 
classes and packing groups. Generally, the regulations require each 
shipper to classify a material in accordance with these hazard classes 
and packing groups. The process of classifying a hazardous material is 
itself a form of hazard analysis. Currently, prior to the 
transportation all explosives (Hazard Class 1), including Division 1.4G 
consumer fireworks, must be classed, approved, and issued an EX number 
by PHMSA. The EX number is a unique identifier that indicates a 
specific firework device has been classed and approved for 
transportation.
    Further, the regulations require the shipper to communicate a 
material's hazards through use of the hazard class, packing group, and 
proper shipping name on the shipping paper and the use of labels on 
packages and placards on transport vehicles. Thus, the shipping paper, 
labels, and placards communicate the most significant findings of the 
shipper's hazard analysis. A hazardous material is assigned to one of 
three packing groups based upon its degree of hazard, from a high 
hazard, Packing Group I to a low hazard, Packing Group III material. 
Unless otherwise noted in part 173, subpart C or Sec.  173.7(a)) all 
Class 1 (explosive) materials are assigned a Packing Group II. The 
quality, damage resistance, and performance standards of the packaging 
in each packing group are appropriate for the hazards of the material 
transported.
    Under the HMR, hazardous materials are transported by aircraft, 
vessel, rail, and highway. The potential for environmental damage or 
contamination exists when packages of hazardous materials are involved 
in accidents or en route incidents resulting from cargo shifts, valve 
failures, package failures, loading, unloading, collisions, handling 
problems, or deliberate sabotage. The release of hazardous materials 
can cause human death or injury, the loss of ecological resources 
(e.g., wildlife habitats), and the contamination of air, aquatic 
environments, and soil. Contamination of soil can lead to the 
contamination of ground water. Compliance with the HMR substantially 
reduces the possibility of accidental release of hazardous materials.
    When developing potential regulatory requirements, PHMSA evaluates 
those requirements to consider the environmental impact of each 
amendment. Specifically, PHMSA evaluates the: risk of release and 
resulting environmental impact; risk to human safety, including any 
risk to first responders; longevity of the packaging; and if the 
proposed regulation would be carried out in a defined geographic area, 
the resources, especially any sensitive areas, and how they could be 
impacted by any proposed regulations.
    PHMSA believes that the regulatory changes adopted in this 
rulemaking present no environmental impact on the quality of the human 
environment because both alternatives deal with the processing of 
applications. Specifically, these amendments have no impact on: the 
risk of release and resulting environmental impact; human safety; 
longevity of the packaging; and none of these amendments would be 
carried out in a defined geographic area. Furthermore, the amendments 
only affect the authorization process that deems Division 1.4G consumer 
fireworks safe for transport and has no impact on any other transport 
requirements (e.g., packaging, hazard communication, etc.). The action 
would provide an additional application process that would not impact 
the exemplary safety record that Division 1.4G consumer fireworks have 
demonstrated over the past forty years as the same consensus industry 
standard would be used by both PHMSA and the FCAs when evaluating 
Division 1.4G consumer fireworks.
Conclusion
    PHMSA sought comment on the environmental assessment contained in 
the August 30, 2012 [77 FR 52636], NPRM published under Docket No. 
PHMSA 2010-0320. PHMSA did not receive any comments on the 
environmental assessment contained in that rulemaking. This action has 
been thoroughly reviewed by PHMSA. The regulatory changes adopted in 
this rulemaking simply allow an alternate authorization process for the 
certification of Division 1.4G consumer fireworks. The new process will 
not impact on the quality of the human environment. Therefore, PHMSA 
concludes that no significant environmental impact will result from 
this rule.

J. Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19477), which may be viewed at 
http:[sol][sol]www.dot.gov/privacy.

[[Page 42473]]

K. International Trade Analysis

    Under E.O. 13609, agencies must consider whether the impacts 
associated with significant variations between domestic and 
international regulatory approaches are unnecessary or may impair the 
ability of American business to export and compete internationally. In 
meeting shared challenges involving health, safety, labor, security, 
environmental, and other issues, international regulatory cooperation 
can identify approaches that are at least as protective as those that 
are or will be adopted in the absence of such cooperation. 
International regulatory cooperation can also reduce, eliminate, or 
prevent unnecessary differences in regulatory requirements.
    Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as 
amended by the Uruguay Round Agreements Act (Pub. L. 103-465), 
prohibits Federal agencies from establishing any standards or engaging 
in related activities that create unnecessary obstacles to the foreign 
commerce of the United States. For purposes of these requirements, 
Federal agencies may participate in the establishment of international 
standards, so long as the standards have a legitimate domestic 
objective, such as providing for safety, and do not operate to exclude 
imports that meet this objective. The statute also requires 
consideration of international standards and, where appropriate, that 
they be the basis for U.S. standards.
    PHMSA participates in the establishment of international standards 
in order to protect the safety of the American public. We have assessed 
the effects of the rule, and find that because the alternative process 
parallels the current approval process, it will not cause unnecessary 
obstacles to foreign trade. Accordingly, this rulemaking is consistent 
with Executive Order 13609 and PHMSA's obligations under the Trade 
Agreement Act, as amended.

L. National Technology Transfer and Advancement Act.

    The National Technology Transfer and Advancement Act of 1995 (15 
U.S.C. 272 note) directs Federal agencies to use voluntary consensus 
standards in their regulatory activities unless doing so would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., specification of 
materials, test methods, or performance requirements) that are 
developed or adopted by voluntary consensus standard bodies.
    This rulemaking involves one technical standard: American 
Pyrotechnics Association (APA), APA Standard 87-1 Standard for 
Construction and Approval for Transportation of Fireworks, Novelties, 
and Theatrical Pyrotechnics, December 1, 2001 version. This technical 
standard is listed in 49 CFR 171.7.

List of Subjects

49 CFR Part 107

    Administrative practice and procedure, Hazardous materials 
transportation, Penalties, Reporting and recordkeeping requirements.

49 CFR Part 171

    Applicability, General information, Regulations, and Definitions.

49 CFR Part 172

    Education, Hazardous materials transportation, Hazardous waste, 
Labeling, Markings, Packaging and containers, Reporting and 
recordkeeping requirements.

49 CFR Part 173

    Hazardous materials transportation, Packaging and containers, 
Radioactive materials, Reporting and recordkeeping requirements, 
Uranium.

    In consideration of the foregoing, 49 CFR chapter I is amended 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; 101 section 4 (28 U.S.C. 
2461 note); Pub. L. 104-121 sections 212-213; Pub. L. 104-134 
section 31001; 49 CFR 1.81, 1.96 and 1.97.


0
2. Revise Sec. Sec.  107.401 and 107.402 to read as follows:


Sec.  107.401  Purpose and scope.

    (a) This subpart establishes procedures for the designation of 
agencies to issue certificates and certifications for types of 
packagings designed, manufactured, tested, or maintained in conformance 
with the requirements of this subchapter, subchapter C of this chapter, 
and standards set forth in the United Nations (U.N.) Recommendations 
(Transport of Dangerous Goods), and for lighters, portable tanks, 
multi-element gas containers, and Division 1.4G consumer fireworks in 
conformance with the requirements of this subchapter. Except for 
certifications of compliance with U.N. packaging standards, this 
subpart does not apply unless made applicable by a rule in subchapter C 
of this chapter.
    (b) The Associate Administrator may issue approval certificates and 
certifications addressed in paragraph (a) of this section.


Sec.  107.402  Application for designation as a certification agency.

    (a) Any organization or person seeking to be approved as a 
certification agency must apply in writing to the Associate 
Administrator for Hazardous Materials Safety (PHH-32), Department of 
Transportation, East Building, 1200 New Jersey Avenue SE., Washington 
DC 20590-0001. Alternatively, the application in an appropriate format 
may be submitted by facsimile (fax) to: (202) 366-3753 or (202) 366-
3308 or by electronic mail (email) to: approvals@dot.gov. Each 
application must be signed and certified to be correct by the applicant 
or, if the applicant is an organization, by an authorized officer or 
official representative of the organization. Any false statement or 
representation, or the knowing and willful concealment of a material 
fact, may subject the applicant to prosecution under the provisions of 
18 U.S.C. 1001, and result in the denial or termination of a 
designation.
    (b) Each application for approval as a certification agency must be 
in English and include the following information:
    (1) Information required by the provisions in subpart H of this 
part;
    (2) Name and address of the applicant, including place of 
incorporation if a corporation. In addition, if the applicant is not a 
resident of the United States, the name and address of a permanent 
resident of the United States designated in accordance with Sec.  
105.40 of this subchapter to serve as agent for service of process. A 
person approved as a certification agency is not a PHMSA agent or 
representative;
    (3) A statement acknowledging that the Associate Administrator or a 
designated official may inspect, on demand, its records and facilities 
in so far as they relate to the certification activities and will 
cooperate in the conduct of such inspections; and
    (4) Any additional information relevant to the applicant's 
qualifications, upon request of the Associate Administrator or a 
designated official.
    (c) UN Third-Party Packaging Certification Agency. In addition to 
the requirements in paragraph (b) of this section, the application must 
include the following information:
    (1) A listing, by DOT specification (or special permit) number, or 
U.N. designation, of the types of packagings for which certification 
authority is sought;

[[Page 42474]]

    (2) A statement showing proof that the applicant has:
    (i) The ability to review and evaluate design drawings, design and 
stress calculations;
    (ii) The knowledge of the applicable regulations of subchapter C of 
this chapter and, when applicable, U.N. standards;
    (iii) The ability to conduct or monitor and evaluate test 
procedures and results; and
    (iv) The ability to review and evaluate the qualifications of 
materials and fabrication procedures.
    (3) A statement that the applicant will perform its functions 
independent of the manufacturers and owners of the packagings 
concerned.
    (4) If the applicant's principal place of business is in a country 
other than the United States, a copy of the designation from the 
Competent Authority of that country delegating to the applicant an 
approval or designated agency authority for the type of packaging for 
which a DOT designation is sought, and a statement that the Competent 
Authority also delegates similar authority to U.S. Citizens or 
organizations having designations under this subpart from PHMSA.
    (d) Fireworks Certification Agency. Prior to reviewing, and 
certifying Division 1.4G consumer fireworks (UN0336) for compliance 
with the APA Standard 87-1 (IBR, see Sec.  171.7 of this chapter) as 
specified in part 173 of this chapter, a person must apply to, and be 
approved by, the Associate Administrator to act as an Fireworks 
Certification Agency.
    (1) Fireworks Certification Agency applicant requirements. The 
Fireworks Certification Agency applicant must--
    (i) Be a U.S. citizen, or for non-U.S. citizens, have a designated 
U.S. agent representative as specified in Sec.  105.40;
    (ii) Employ personnel with work experience in manufacturing or 
testing of Division 1.4G consumer fireworks; or a combination of work 
experience in manufacturing or testing of Division 1.4G consumer 
fireworks and a degree in the physical sciences or engineering from an 
accredited university;
    (iii) Have the ability to:
    (A) Review design drawings, and applications to certify that they 
are in accordance with the APA Standard 87-1; and
    (B) Verify that the applicant has certified the thermal stability 
test procedures and results.
    (iv) Must be independent of and not owned by any consumer fireworks 
manufacturer, distributor, import or export company, or proprietorship.
    (2) Fireworks Certification Agency application submittal 
requirements. In addition to the requirements of paragraphs (b) and 
(d)(1) of this section, the Fireworks Certification Agency application 
must include--
    (i) Name, address, and country of each facility where Division 1.4G 
consumer fireworks applications are reviewed and certified;
    (ii) A detailed description of the qualifications of each 
individual the applicant proposes to employ to review, and certify that 
the requirements specified by part 173 of this chapter and the APA 
Standard 87-1 have been met;
    (iii) Written operating procedures to be used by the Fireworks 
Certification Agency to review and certify that a Division 1.4G 
consumer fireworks application meets the requirements specified in the 
APA Standard 87-1;
    (iv) Name, address, and principal business activity of each person 
having any direct or indirect interest in the applicant greater than 
three percent and any direct or indirect ownership interest in each 
subsidiary or division of the applicant; and
    (v) A statement that the applicant will perform its functions 
independent of the manufacturers, transporters, importers, and owners 
of the fireworks.
    (e) Lighter Certification Agency. Prior to examining and testing 
lighters (UN1057) for compliance with the requirements of Sec.  173.308 
of this chapter a person must apply to, and be approved by, the 
Associate Administrator to act as a lighter certification agency. In 
addition to paragraph (b) of this section, the application must include 
the following information:
    (1) Name and address of each facility where lighters are examined 
and tested; and
    (2) Detailed description of the applicant's qualifications and 
ability to, examine and test lighters and certify that the requirements 
specified by Sec.  173.308 of this chapter have been met.
    (f) Portable tank and MEGC Certification Agencies. Prior to 
inspecting portable tanks or multi-element gas containers (MEGCs) for 
compliance with the requirements of Sec.  180.605(k) of this chapter, 
requirements for periodic testing, inspection and repair of portable 
tanks, and Sec.  178.74 of this chapter, approval of MEGCs, a person 
must apply to, and be approved by, the Associate Administrator to act 
as a certification agency. In addition to paragraph (b) of this 
section, the application must provide the following information:
    (1) Name and address of each facility where the portable tank or 
MEGC is examined and tested; and
    (2) Detailed description of the applicant's qualifications and 
ability to, examine and test portable tanks or MEGCs and certify that 
the requirements specified by Sec.  178.273 of this chapter, 
specifications for UN portable tanks, or Sec.  178.74 of this chapter, 
approval of MEGCs, of this chapter have been met.

0
3. In Sec.  107.403 the section heading and paragraph (c) are revised, 
and paragraph (d) is added to read as follows.


Sec.  107.403  Designation of certification agencies.

* * * * *
    (c) Within 30 days of an initial denial of an application under 
paragraph (b) of this section, the applicant may file an amended 
application. If the application is denied by the Associate 
Administrator of Hazardous Materials Safety, the applicant may, within 
20 days of receipt of the decision, request reconsideration by the 
Associate Administrator as set forth in Sec.  107.715. If the 
reconsideration is denied by the Associate Administrator, the applicant 
may appeal the Associate Administrator's decision, within 30 days of 
the Associate Administrator's decision, to the Administrator of PHMSA, 
as specified in Sec.  107.717.
    (d) The Associate Administrator may modify, suspend, or terminate 
an approval submitted under this subpart as set forth in Sec.  107.713.

0
4. Section 107.405 is removed and reserved to read as follows:


Sec.  107.405  [Reserved]

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
5. The authority citation for part 171 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.96 and 
1.97.


0
6. In Sec.  171.8, add new definition for ``FC number'' in appropriate 
alphabetical sequence to read as follows:


Sec.  171.8  Definitions and abbreviations.

* * * * *
    FC number means a number preceded by the prefix ``FC'', assigned by 
a Fireworks Certification Agency to a Division 1.4G Consumer firework 
device that has been certified under the provisions of Sec.  173.65 of 
this subchapter.
* * * * *

[[Page 42475]]

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS 
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, TRAINING 
REQUIREMENTS, AND SECURITY PLANS

0
7. The authority citation for part 172 is revised to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.96 and 
1.97.


0
8. In Sec.  172.101, the Hazardous Materials Table is amended by 
revising entries under ``[REVISE]'' in the appropriate alphabetical 
sequence to read as follows:


Sec.  172.101  Purpose and use of hazardous materials table.

* * * * *

[[Page 42476]]



                                                                                                Sec.   172.101--Hazardous Materials Table
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                    Hazardous                                                                                                  (8) Packaging (Sec.   173.***)               (9) Quantity limitations            (10) Vessel stowage
                    materials        Hazard                                                             Special     --------------------------------------------------------------------------------------------------------------------
   Symbols      descriptions and    class or     Identification          PG          Label codes       provisions
                 proper shipping    division          Nos.                                               (Sec.          Exceptions        Non-bulk           Bulk          Passenger      Cargo aircraft     Location          Other
                      names                                                                             172.102)                                                         aircraft/rail         only
(1)            (2)...............         (3)  (4)..............  (5)............  (6)............  (7)............  (8A)...........  (8B)...........  (8C)...........  (9A)...........  (9B)...........  (10A).........  (10B)
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
               [REVISE]..........
 
                                                                                                              * * * * * * *
               Fireworks.........        1.4G  UN 0336..........  II.............  1.4G...........  108, 200.......  None...........  62.............  None...........  Forbidden......  75 kg..........  02............  25
 
                                                                                                              * * * * * * *
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 42477]]


0
9. In Sec.  172.102(c)(1), Special Provision 200 is added in numerical 
sequence to read as follows:


Sec.  172.102  Special provisions.

* * * * *
    (c) * * *
    (1) * * *

Code/Special Provisions

* * * * *
    200 Division 1.4G consumer fireworks may be certified for 
transportation by a DOT-approved Fireworks Certification Agency in 
accordance with the provisions of Sec.  173.65 of this subchapter.
* * * * *

0
10. In Sec.  172.320, paragraph (b) and paragraph (d) are revised to 
read as follows:


Sec.  172.320  Explosive hazardous materials.

* * * * *
    (b) Except for fireworks approved in accordance with Sec.  173.64 
of this subchapter, a package of Class 1 materials may be marked as 
follows, in lieu of the EX number required by paragraph (a) of this 
section:
    (1) With a national stock number issued by the Department of 
Defense or identifying information, such as a product code required by 
regulations for commercial explosives specified in 27 CFR part 555, if 
the national stock number or identifying information can be 
specifically associated with the EX number assigned; or
    (2) For Division 1.4G consumer fireworks reviewed by a Fireworks 
Certification Agency approved in accordance with 49 CFR part 107 
subpart E and certified in accordance with Sec.  173.65, with the FC 
number assigned by a DOT-approved Fireworks Certification Agency.
* * * * *
    (d) The requirements of this section do not apply if the EX number, 
FC number, product code or national stock number of each explosive item 
described under a proper shipping description is shown in association 
with the shipping description required by Sec.  172.202(a). Product 
codes and national stock numbers must be traceable to the specific EX 
number assigned by the Associate Administrator or FC number assigned by 
a DOT-approved Fireworks Certification Agency.
* * * * *

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND 
PACKAGINGS

0
11. The authority citation for part 173 is revised to read as follows:

    Authority:  49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.96 and 
1.97.


0
12. In Sec.  173.56, the introductory text for paragraph (b) is revised 
to read as follows, and paragraph (j) is removed and reserved.


Sec.  173.56  New explosives--definitions and procedures for 
classification and approval.

* * * * *
    (b) Examination, classification and approval. Except as provided in 
Sec. Sec.  173.64 and 173.65, no person may offer a new explosive for 
transportation unless that person has specified to the examining agency 
the ranges of composition of ingredients and compounds, showing the 
intended manufacturing tolerances in the composition of substances or 
design of articles which will be allowed in that material or device, 
and unless it has been examined, classed and approved as follows:
* * * * *
    (j) [Reserved]
* * * * *

0
13. In Sec.  173.59, add new definition for ``consumer firework'' in 
appropriate alphabetical sequence to read as follows:


Sec.  173.59  Description of terms for explosives.

* * * * *
    Consumer firework. Any finished firework device that is in a form 
intended for use by the public that complies with any limits and 
requirements of the APA Standard 87-1 (IBR, see Sec.  171.7 of this 
subchapter) and the construction, performance, chemical composition, 
and labeling requirements codified by the U.S. Consumer Product Safety 
Commission in 16 CFR parts 1500 and 1507. A consumer firework does not 
include firework devices, kits or components banned by the U.S. 
Consumer Product Safety Commission in 16 CFR 1500.17 (a)(8).
* * * * *

0
14. Add new Sec.  173.64 to subpart C to read as follows:


Sec.  173.64  Exceptions for Division 1.3 and 1.4 fireworks.

    (a) Notwithstanding the requirements of Sec.  173.56(b), Division 
1.3 and 1.4 fireworks (see Sec.  173.65 for Division 1.4G consumer 
fireworks) may be classed and approved by the Associate Administrator 
without prior examination and offered for transportation if the 
following conditions are met:
    (1) The fireworks are manufactured in accordance with the 
applicable requirements in APA Standard 87-1 (IBR, see Sec.  171.7 of 
this subchapter);
    (2) The device must pass a thermal stability test conducted by a 
third-party laboratory, or the manufacturer. The test must be performed 
by maintaining the device, or a representative prototype of a large 
device such as a display shell, at a temperature of 75 [deg]C 
(167[emsp14][deg]F) for 48 consecutive hours. When a device contains 
more than one component, those components that could be in physical 
contact with each other in the finished device must be placed in 
contact with each other during the thermal stability test;
    (3) The manufacturer applies in writing to the Associate 
Administrator following the applicable requirements in APA Standard 87-
1, and is notified in writing by the Associate Administrator that the 
fireworks have been classed, approved, and assigned an EX number. Each 
application must be complete and include all relevant background data 
and copies of all applicable drawings, test results, and any other 
pertinent information on each device for which approval is being 
requested. The manufacturer must sign the application and certify that 
the device for which approval is requested conforms to APA Standard 87-
1, that the descriptions and technical information contained in the 
application are complete and accurate, and that no duplicate 
application has been submitted to a 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).
    (b) [Reserved]


0
15. Add new Sec.  173.65 to subpart C to read as follows.


Sec.  173.65  Exceptions for Division 1.4G consumer fireworks.

    (a) Notwithstanding the requirements of Sec. Sec.  173.56(b), 
173.56(f), 173.56(i), and 173.64, Division 1.4G consumer fireworks may 
be offered for transportation provided the following conditions are 
met:
    (1) The fireworks are manufactured in accordance with the 
applicable requirements in APA Standard 87-1 (IBR, see Sec.  171.7 of 
this subchapter);
    (2) The device must pass a thermal stability test. The test must be 
performed by maintaining the device, or a representative prototype of 
the device, at a temperature of 75 [deg]C (167[emsp14][deg]F) for 48 
consecutive hours. When a device contains more than one component,

[[Page 42478]]

those components that could be in physical contact with each other in 
the finished device must be placed in contact with each other during 
the thermal stability test;
    (3) The manufacturer of the Division 1.4G consumer firework applies 
in writing to a DOT-approved Fireworks Certification Agency, and is 
notified in writing by the DOT-approved Fireworks Certification Agency 
that the firework has been:
    (i) Certified that it complies with APA Standard 87-1, and meets 
the requirements of this section; and
    (ii) Assigned an FC number.
    (4) The manufacturer's application must be complete and include:
    (i) Detailed diagram of the device;
    (ii) Complete list of the chemical compositions, formulations and 
quantities used in the device;
    (iii) Results of the thermal stability test; and
    (iv) Signed certification declaring that the device for which 
certification is requested conforms to the APA Standard 87-1, that the 
descriptions and technical information contained in the application are 
complete and accurate, and that no duplicate applications have been 
submitted to PHMSA. If the application is denied, the Fireworks 
Certification Agency must notify the manufacturer in writing of the 
reasons for the denial. As detailed in the DOT-approval issued to the 
Fireworks Certification Agency, following the issuance of a denial from 
a Fireworks Certification Agency, a manufacturer may seek 
reconsideration from the Fireworks Certification Agency, or may appeal 
the reconsideration decision of the Fireworks Certification Agency to 
PHMSA's Administrator.
    (b) Recordkeeping requirements. Following the certification of each 
Division 1.4G consumer firework as permitted by paragraph (a) of this 
section, the manufacturer and importer must maintain a paper record or 
an electronic image of the certificate, demonstrating compliance with 
this section. Each record must clearly provide the unique identifier 
assigned to the firework device and the Fireworks Certification Agency 
that certified the device. The record must be accessible at or through 
its principal place of business and be made available, upon request, to 
an authorized official of a Federal, State, or local government agency 
at a reasonable time and location. Copies of certification records must 
be maintained by each importer, manufacturer, or a foreign 
manufacturer's U.S. agent, for five (5) years after the device is 
imported. The certification record must be made available to a 
representative of PHMSA upon request.

    Issued in Washington, DC, on July 11, 2013, under authority 
delegated in 49 CFR part 106.
Cynthia L. Quarterman
Administrator, Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2013-16986 Filed 7-15-13; 8:45 am]
BILLING CODE 4910-60-P