{"operation":"document","citation":"77 FR 52636","title":"Hazardous Materials: Revision to Fireworks Regulations (RRR)","source_type":"rulemaking","agency":"Pipeline and Hazardous Materials Safety Administration","status":"proposed","official":true,"published_on":"2012-08-30","effective_on":null,"summary":"PHMSA is proposing to revise the Hazardous Materials Regulations applicable to the approval of Division 1.4G consumer fireworks (UN0336 Fireworks) and establish DOT-approved fireworks certification agencies that will provide an alternative to the approval process for Division 1.4G consumer fireworks. PHMSA is also proposing to revise procedural regulations pertaining to certification agencies. These proposed actions, if adopted, will clarify regulations with respect to PHMSA's fireworks approval process and provide regulatory flexibility in seeking authorization for the transportation of Division 1.4G consumer fireworks.","machine_formats":{"json":"https://regulus.evalyn.ai/document/federal-register-2012-21360.json","markdown":"https://regulus.evalyn.ai/document/federal-register-2012-21360.md"},"app_url":"https://regulus.evalyn.ai/document/federal-register-2012-21360","source_url":"https://www.federalregister.gov/documents/2012/08/30/2012-21360/hazardous-materials-revision-to-fireworks-regulations-rrr","body":"Federal Register, Volume 77 Issue 169 (Thursday, August 30, 2012) [Federal Register Volume 77, Number 169 (Thursday, August 30, 2012)] [Proposed Rules] [Pages 52636-52650] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2012-21360] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 107, 172, and 173 [Docket No. PHMSA-2010-0320 (HM-257)] RIN 2137-AE70 Hazardous Materials: Revision to Fireworks Regulations (RRR) AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Notice of proposed rulemaking (NPRM). ----------------------------------------------------------------------- SUMMARY: PHMSA is proposing to revise the Hazardous Materials Regulations applicable to the approval of Division 1.4G consumer fireworks (UN0336 Fireworks) and establish DOT-approved fireworks certification agencies that will provide an alternative to the approval process for Division 1.4G consumer fireworks. PHMSA is also proposing to revise procedural regulations pertaining to certification agencies. These proposed actions, if adopted, will clarify regulations with respect to PHMSA's fireworks approval process and provide regulatory flexibility in seeking authorization for the transportation of Division 1.4G consumer fireworks. DATES: Comments must be received by October 29, 2012. To the extent possible, PHMSA will consider late-filed comments as a final rule is developed. ADDRESSES: You may submit comments by identification of the docket number (PHMSA-2010-0320 (HM-257)) by any of the following methods: Federal eRulemaking Portal: Go to http://www.regulations.gov . Follow the online instructions for submitting comments. Fax: 1-202-493-2251. Mail: Docket Operations, U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, Routing Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590. Hand Delivery: To Docket Operations, Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Instructions: All submissions must include the agency name and docket number for this notice at the beginning of the comment. All comments received will be posted without change to the Federal Docket Management System [[Page 52637]] (FDMS), including any personal information. Docket: For access to the dockets to read background documents or comments received, go to http://www.regulations.gov or DOT's Docket Operations Office (see ADDRESSES). FOR FURTHER INFORMATION CONTACT: Rob Benedict, or Lisa O'Donnell, Standards and Rulemaking Division, Office Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, at (202) 366-8553. SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary II. Background III. Proposed Amendments IV. Summary Review of Proposed Amendments V. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking B. Executive Order 12866, 13563, and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies F. Paperwork Reduction Act G. Regulatory Identifier Number (RIN) H. Unfunded Mandates Reform Act of 1995 I. Environmental Assessment J. Privacy Act K. International Trade Analysis L. National Technology Transfer and Advancement Act VI. List of Subjects I. Executive Summary The pyrotechnic industry is a global logistics supply chain comprised of mostly foreign fireworks manufacturers and domestic importers, retailers, distributors, and consumers. Prior to the transportation into and throughout the U.S., all explosives, including Division 1.4 consumer fireworks, must be classed, approved, and issued a DOT EX classification approval number (EX number) by PHMSA. The EX number is a unique identifier that indicates a firework device has been classed and approved for transportation into and throughout the U.S. PHMSA is committed to maintaining the exemplary transportation safety record that Division 1.4G consumer fireworks have displayed over the past forty years, but seeks to reduce burden and increase flexibility for the regulated community by providing an alternative to PHMSA's approval process. PHMSA has conducted an intensive retrospective review of the fireworks approval program and has determined that there is a delay in the processing of EX approval applications under the current regulatory scheme. PHMSA proposes an alternative option for Division 1.4G consumer fireworks in which applicants will submit applications for certification to a Fireworks Certification Agency (FCA), in lieu of submitting applications for approval to PHMSA. To ensure oversight of the proposed FCAs, this proposal includes reporting and recordkeeping requirements. Additionally, PHMSA is proposing to define consumer fireworks and clarify the approval process for designation as a certification agency. This NPRM affects the following entities and proposes the following requirements: ------------------------------------------------------------------------ Affected entities Proposals ------------------------------------------------------------------------ Division 1.4G consumer Provide for fireworks manufacturers complying with alternative method to certify Part 173. Division 1.4G consumer Division 1.4G consumer fireworks for transportation. fireworks importers complying with Require retention of a Part 173. record by certifying agencies, Division 1.4G consumer manufacturers and importers fireworks transporters complying with indicating a Division 1.4G Part 173. consumer fireworks FCAs certifying compliance classification has been with the requirements for Division certified in a manner 1.4G consumer fireworks. consistent with the proposed State and local fire service requirements. and law enforcement agencies that Clarify approval utilize Division 1.4G consumer process for designation as a fireworks classifications and certification agency and approvals under the HMR to enforce provide for reconsideration of additional state and local decisions to modify, requirements and bans. terminate, or suspend a Lighter Testing Agencies...... designation. Package Testing Laboratories.. ------------------------------------------------------------------------ To monetize the costs and benefits of the proposals in this NPRM, PHMSA used a number of assumptions to develop a base case. The overall costs and benefits of the proposals are dependent on the assumption that all affected entities are currently complying with the regulations and that 50 to 90 percent of applicants will choose a DOT-approved FCA to certify that Division 1.4G consumer fireworks complies with the American Pyrotechnics Association's (APA) Standard 87-1 (IBR, see Sec. 171.7), in lieu of filing an approval application with PHMSA.\\1\\ We believe this alternative process will be attractive to the fireworks industry as it will expedite the transportation process without compromising the current level of safety, enable shipments of Division 1.4G consumer fireworks to reach the market in a more timely manner, and consequently provide a cost savings. Cost in this scenario, includes the cost attributed to shipments that are delayed while approval applications are pending with PHMSA. --------------------------------------------------------------------------- \\1\\ PHMSA based the percentage range (fifty to ninety percent) used in this rulemaking on the fact that over eighty percent of firework importers and manufacturers voluntarily participate in American Fireworks Standards Laboratory (AFSL) testing program to comply with the Consumer Product Safety Commission (CPSC) requirements. A range was chosen to demonstrate some level of uncertainty and to provide a tolerance for fluctuations in use of FCAs. --------------------------------------------------------------------------- Costs associated with the proposals are primarily comprised of fees that FCAs may assess on manufacturers of Division 1.4G fireworks. There may also be costs associated with proposed recordkeeping requirements.\\2\\ Benefits will be derived from the expedited processing of consumer fireworks applications, resulting in faster time to market for each firework device. PHMSA estimates that the economic effects of this rulemaking, once finalized and adopted, will be sustained indefinitely. However, because of the difficulty of and uncertainty associated with forecasting industry effects into the far future, we assume a 10-year timeframe to outline, quantify, and monetize the costs and benefits of the [[Page 52638]] proposals and to demonstrate the net effects of the proposals. --------------------------------------------------------------------------- \\2\\ PHMSA assumed that, absent relevant information on document retention practices of the fireworks industry, 50 percent of records will be stored in paper format and 50 percent of records will be stored in electronic format. Based on this assumption PHMSA estimated the record keeping cost to be approximately $610 per U.S. importer/manufacturer per year. --------------------------------------------------------------------------- If the proposals in this NPRM are adopted, PHMSA estimates total annual benefits will be between approximately $14.5 million and $26.5 million, and total annual costs will be between $4 million and $7 million, resulting in total annual net benefits of between $11 million and $19 million. The table below summarizes the calculated cost and benefits associated with the NPRM. Annual Net Benefits ------------------------------------------------------------------------ Low redirected High redirected application rate application rate (50%) (90%) ------------------------------------------------------------------------ BENEFITS ------------------------------------------------------------------------ Expected Annual Private-Sector $14,680,000 $26,430,000 Benefits of Expedited Verification................... ------------------------------------- TOTAL ANNUAL BENEFITS......... 14,680,000 26,430,000 ------------------------------------------------------------------------ COSTS ------------------------------------------------------------------------ Record Retention Costs: Costs of 2 Additional Years of 10,200 58,000 Paper Record Retention, All U.S. Importers per year...... ------------------------------------- Cost for Required Electronic Negligible Negligible Storage Space, All U.S. Importers and Manufacturers per year..................... ------------------------------------- Total Annual Record 10,200 58,000 Retention Costs.......... FCA Processing Costs: Costs of application 3,937,500 7,087,500 processing conducted by FCAs **........................... ------------------------------------- Total Annual FCA 3,937,500 7,087,500 Processing Costs......... ------------------------------------- TOTAL ANNUAL COSTS.... 3,947,700 7,145,500 ------------------------------------- TOTAL ANNUAL NET 10,732,300 19,284,500 BENEFITS......... ------------------------------------------------------------------------ PHMSA estimates the 10-year present value of the net benefits is about $80 million to $143 million (discounted at a 3 percent rate) or $55 million to $98 million (discounted at a 7 percent rate). PHMSA concludes that the aggregate benefits justify the aggregate costs. A summary of the range of expected annual costs and benefits is provided in the table below.\\3\\ --------------------------------------------------------------------------- \\3\\ Figures are rounded. Annual Benefit ($2012)................ $14.5-26.5 million. Annual Cost ($2012)................... $4-7 million. Benefit-Cost Ratio.................... 3.70-3.71. Net Benefit........................... $11-19 million. PHMSA requests specific comments on the analysis underlying these estimates, including the percentage of entities that will choose to have their 1.4G consumer fireworks certified by FCAs instead of being approved by PHMSA, the manner in which records will be kept (i.e., electronic or paper), the estimated cost of the recordkeeping requirements, the number of affected entities (e.g., manufacturers and importers), and the estimated fee an FCA would charge for certification. We are also asking for general comments or suggestions regarding approaches to reduce the costs of this rule while maintaining or increasing the benefits. Additionally, PHMSA seeks comments on possible changes that might improve the rule and increase regulatory flexibility. II. Background The requirements for the classification and packaging of Class 1 explosive materials are specified in Subpart C of Part 173 of the Hazardous Materials Regulations (HMR; 49 CFR parts 171--180). Fireworks are considered a Class 1 explosive material and must be classified under one of five hazard divisions and compatibility groups (1.1G, 1.2G, 1.3G, 1.4G, and 1.4S). As currently specified in Subpart C of Part 173 of the HMR, prior to transportation into and within the U.S., all explosives, including fireworks, must be approved and assigned a classification by PHMSA based on actual testing. Division 1.3 and 1.4 fireworks may also be approved in accordance with the American Pyrotechnics Association (APA) Standard 87-1. PHMSA's Current Fireworks Regulations Division 1.1 fireworks must be examined by a DOT-approved explosives test laboratory and assigned a recommended shipping description, division, and compatibility group in accordance with Sec. Sec. 173.56(b), 173.56(f) or 173.56(i). Division 1.3 and 1.4 fireworks may either be approved in accordance with Sec. Sec. 173.56(b), 173.56(f) or 173.56(i), or in accordance with Sec. 173.56(j), which provides an option for obtaining an EX number and approval without prior testing by a DOT-approved explosives test laboratory. Section 173.56(j) requires that the firework device is manufactured in accordance with APA Standard 87-1 and passes a thermal stability test. An applicant requesting PHMSA approval based on Sec. 173.56(j) submits an application that contains required information specified in APA Standard 87-1. For example, the standard requires that the size of the device, as well as the various formulas and weights of each type of chemical composition contained in the device must be specified in the application. Only formulas containing chemicals identified in APA Standard 87-1, Table of ``Standard Fireworks Chemicals'' can be approved under the provisions of APA Standard 87-1. PHMSA has expanded on the Table of ``Standard Fireworks Chemicals'' to further detail chemicals that are permitted and prohibited in consumer fireworks devices.\\4\\ The manufacturer must submit a signed application with a detailed diagram of the device and certify that [[Page 52639]] the device complies with APA Standard 87-1. --------------------------------------------------------------------------- \\4\\ PHMSA's expanded list of permitted and prohibited chemicals for consumer fireworks devices can be found at the following URL: http://www.phmsa.dot.gov/staticfiles/PHMSA/DownloadableFiles/Hazmat/Regulations/Approved%20and%20Prohibited%20Fireworks%20Chemicals-02-21-2012.pdf . --------------------------------------------------------------------------- While both Sec. Sec. 173.56(b) and 173.56(j) require the applicant to submit an application to PHMSA's Approvals and Permits Division for approval, the HMR provides a couple of alternatives. Under Sec. 173.56(i), if experience or other data demonstrates that the hazard of a firework device containing an explosive chemical composition is greater or less than indicated according to the definition and criteria specified in Sec. Sec. 173.50, 173.56, and 173.58, the Associate Administrator may specify a classification (including determining that it is forbidden from transportation), or except the device from the HMR. The HMR also permits the transport of firework devices the Associate Administrator approves on the basis of an approval issued by the competent authority of a foreign government, or when examination of the explosive by a person approved by the Associate Administrator is impracticable, on the basis of reports of tests conducted by disinterested third parties, as specified in Sec. 173.56(f). Regulatory Review of PHMSA's Fireworks Program On May 10, 2012, President Obama issued Executive Order 13610 (Identifying and Reducing Regulatory Burdens) reaffirming the goals of Executive Order 13563 (Improving Regulation and Regulatory Review) issued January 18, 2011, and Executive Order 12866 (Regulatory Planning and Review) issued September 30, 1993. Executive Order 13610 directs agencies to prioritize ``those initiatives that will produce significant quantifiable monetary savings or significant quantifiable reductions in paperwork burdens while protecting public health, welfare, safety, and our environment.'' Executive Order 13610 further instructs agencies to give consideration to the cumulative effects of their regulations, including cumulative burdens, and prioritize reforms that will significantly reduce burdens. Executive Order 13563, which supplements Executive Order 12866, directs federal agencies to periodically review existing significant regulations, retrospectively analyze rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and modify, streamline, expand, or repeal regulatory requirements that are no longer justified. Agencies are also directed to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. In light of these Executive Orders and the President's continued efforts to streamline government regulations, we have evaluated our fireworks approval program to identify areas where we can improve efficiency, reduce burdens, and increase regulatory flexibility without diminishing safety. Specifically, we analyzed the timeline for reviewing applications for approval of fireworks devices. We found that over the past two years, PHMSA has reviewed roughly 30,000 applications for approval of fireworks devices. Approximately seventy-five percent of these applications sought approval for Division 1.4G consumer fireworks devices. Due to the high volume of applications submitted for Division 1.4G consumer fireworks devices, the approximate review time per application is 120 days. Review time may be extended if applications are rejected for minor flaws, such as mathematical errors, or denied for safety issues. If an application is rejected, the applicant often resubmits the application placing it at the end of the review queue. If an application is denied, the applicant may file for reconsideration and subsequently may appeal to the Administrator; thereby delaying the final disposition of the application. Consequently, the delay in processing applications can have an economic impact on the fireworks industry. For example, the lengthy approval process interrupts the supply chain and delays devices from reaching retail stores, which results in substantial revenue losses for U.S. importers, distributors and retail stores, many of whom are small businesses. Also, manufacturers of fireworks devices often charge U.S. purchasers storage fees for devices purchased that are pending approval and cannot be transported into and throughout the U.S. After significant review of our fireworks program, we have identified areas that should be modified to decrease the delay in processing approvals. PHMSA is proposing to revise the HMR to provide an alternative option that will expedite the process for obtaining authorization to transport Division 1.4G consumer fireworks into and throughout the U.S., without compromising the current level of safety. PHMSA believes the revisions proposed in this NPRM will reduce burdens and enhance flexibility for the regulated community, while maintaining an equivalent level of safety provided in the HMR.\\5\\ --------------------------------------------------------------------------- \\5\\ Over the past forty years, there have been 35 reported transportation incidents in the U.S. involving fireworks that were declared hazardous materials. During this same period, there has never been a death or major injury attributed to fireworks while in transportation when there was compliance with the regulations. While there have been two incidents that resulted in fatalities in that forty year period, both involved the improper setup or storage of display fireworks, and were not attributed to the transportation of Division 1.4G consumer fireworks. Detailed hazardous materials incident reports for hazardous materials incidents specified in Sec. 171.16 may be found at the PHMSA Web site at the following URL: https://hazmatonline.phmsa.dot.gov/IncidentReportsSearch/Search.aspx . --------------------------------------------------------------------------- III. Proposed Amendments In an effort to reduce regulatory burden and provide regulatory flexibility, without diminishing safety, PHMSA proposes structural changes to the regulations relating to PHMSA's fireworks program. Under the proposed revision, PHMSA will continue to approve Division 1.4G consumer fireworks in accordance with the current requirements specified in Sec. Sec. 173.56(b), 173.56(f), 173.56(i), or 173.56(j). In addition to the current approval process, PHMSA proposes a new alternative that will permit manufacturers to apply to a DOT-approved Fireworks Certification Agency (FCA) to review and certify that Division 1.4G consumer fireworks comply with APA Standard 87-1 and are safe for transportation in commerce. To provide oversight of the DOT- approved FCAs, PHMSA is proposing reporting and recordkeeping requirements. PHMSA is also proposing to revise subpart E of part 107 to clarify the approval process for designation as a certification agency and provide for reconsideration of decisions to modify, terminate, or suspend a designation. Fireworks Certification Agency (FCA) The proposed alternative process for Division 1.4G consumer fireworks will parallel the current requirements under Sec. 173.56(j), except that, rather than submitting an approval application to PHMSA, the manufacturer or their U.S. designated agent will submit a certification application to a DOT-approved FCA to review and certify that the firework devices match the chemical compositions, sizes, and weights detailed in the application and that they meet the defining criteria set forth in APA Standard 87-1 to be classified as a Division 1.4G consumer firework. In addition, PHMSA proposes to require the DOT-approved FCA conduct a physical examination of a sample of the Division 1.4G consumer firework design. This proposal is consistent with the requirements for other DOT-approved certification agencies. A DOT-approved FCA will be analogous to lighter certification agencies, which certify lighter designs, and independent [[Page 52640]] inspection agencies, which evaluate and certify cylinder manufacturers. These entities physically examine the product (i.e., lighters or cylinders) to determine whether the product meets certain criteria specified in the HMR to ensure safe transportation of the product. Likewise, PHMSA proposes to require the DOT-approved FCAs physically examine a sample of the Division 1.4G consumer firework design type prior to initial shipment to determine whether the device meets the requirements of APA Standard 87-1 and matches the dimensions, chemical composition, and device type specified in the application for certification. To become a DOT-approved FCA, the applicant will be required to submit an application with all procedures it will use to review and certify Division 1.4G consumer fireworks, in accordance with the provisions in subpart E of part 107. These procedures will be designed by the applicant; however, PHMSA will review the applicant's procedures to determine whether they are adequate to certify compliance with APA- Standard 87-1 and whether they provide an equivalent or greater level of safety to the current approval process. PHMSA plans to develop a guidance document for FCAs addressing standard procedures for the certification of Division 1.4G consumer fireworks. Any domestic or foreign entity may apply to become a DOT-approved FCA provided that it is not directly or indirectly controlled by, or have a financial involvement with, any entity that manufactures, transports, or imports fireworks, except for providing services as an FCA. To qualify as a DOT-approved FCA, each applicant must: (1) Meet specific criteria designed to ensure that the FCA is an impartial, independent, unbiased, and qualified entity; (2) submit an application, including certification procedures; and (3) successfully complete a facility inspection performed by PHMSA. To meet the specific qualification criteria, the applicant will be required to demonstrate knowledge of the applicable regulations, including subpart C of part 173 of the HMR and the APA standard 87-1, the ability to review and evaluate design drawings and applications in accordance with the APA standard 87-1, and the ability to review and evaluate the qualifications of materials and fabrication procedures. If approved, PHMSA will issue an approval and an identifying number unique to that FCA. This number will provide traceability and enable PHMSA to seek corrective action or suspend or terminate certification authority if the requirements of the HMR or the FCA approval are not met. Fireworks Identification Scheme Currently, all Division 1.4G fireworks devices are approved by PHMSA and assigned an EX number that represents that the fireworks article or device is in compliance with the classification requirements of the HMR. A current EX number approval begins with the letters ``EX'' followed by the year of issuance (e.g. 2012), the month of issuance, (e.g. 07), and the approval number issued that month, where ``0001'' indicates the first approval of the month. An example of the entire string of numbers appears as follows: ``EX2012070001.'' To differentiate between an approval issued by PHMSA and a DOT- approved FCA certification, PHMSA proposes to use an FX numbering scheme. Instead of issuing an EX number and approval through PHMSA for a fireworks device, which is an inherently governmental function that cannot be reassigned, the DOT-approved FCA will issue a unique identifier (FX number) for devices it certifies as Division 1.4G consumer fireworks. The FX number will identify the DOT-approved FCA, the device, and the manufacturer. An example of an FX number would be ``FX123-456.'' In this example ``123'' will correspond to the DOT- approved FCA conducting the review and certification. This portion of the numbering sequence will be issued to the FCA by PHMSA. The ``456'' will represent a unique certification identifier traceable to both the manufacturer of the Division 1.4G consumer firework device and the device itself. This portion of the numbering sequence will be issued by the DOT-approved FCA. Each Division 1.4G consumer firework certified in this manner will be required to be marked and labeled in accordance with subpart D and E of part 172. As with EX numbers, marking the package with the FX number will not be required provided the FX number for each fireworks device is indicated on an accompanying shipping paper. The introduction of the FX numbering scheme will result in some Division 1.4G consumer fireworks being assigned an EX number when approved by PHMSA, and others being assigned an FX number when certified by a DOT-approved FCA. Given the long history and wide recognition of the EX numbering scheme, PHMSA seeks specific comments on the supply chain implications, the economic impact and safety concerns associated with the proposed FX numbering system, as well as comments on how to implement the changes if they are adopted. For example, will the use of different alpha designators (i.e., EX and FX) pose complications or confusion within the transportation system? PHMSA also seeks comments regarding alternative methods that may be used to identify Division 1.4G consumer fireworks devices that have been certified by a DOT-approved FCA, including suggestions in the alpha-numeric sequence that will facilitate transport while providing a clear distinction between PHMSA approved devices and devices certified by an FCA as compliant with APA standard 87-1. Reporting and Recordkeeping Requirements PHMSA is proposing specific reporting and recordkeeping requirements to ensure that the DOT-approved FCAs are correctly certifying Division 1.4G consumer fireworks and are in compliance with the HMR and the FCA approval. As a condition of the FCA approval, each DOT-approved FCA will be required to submit to PHMSA electronic reports of the results of all devices submitted for certification on a schedule specified in the approval. Additionally, for each firework device certified and issued an FX number, the DOT-approved FCA that reviewed the application, the manufacturer, and the importer will be required to maintain the device's thermal stability test report and a copy of the application. Currently, most consumer fireworks manufactured or assembled in the U.S. and those imported into the U.S. are voluntarily tested to ensure that they comply with the Consumer Product Safety Commission (CPSC) requirements. The testing facility, the manufacturers, and the importers utilizing this voluntary process are required to maintain records of these tests for three years.\\6\\ As it is current industry practice for importers to maintain similar records under the CPSC requirements, there will be limited additional paperwork burden for importers. The DOT-approved FCA will also be required to maintain a copy of the certification procedures used for each device certified. We propose that [[Page 52641]] FCAs, manufacturers and importers maintain these records for a period of five years; however, PHMSA will maintain the records for up to 10 years consistent with current practices for other approvals. The Associate Administrator, or designated official, may inspect the DOT- approved FCA's facilities and records to verify compliance with the recordkeeping requirements, the HMR, and the FCA approval. --------------------------------------------------------------------------- \\6\\ Importers and domestic manufacturers participating in a voluntary program implemented by American Fireworks Standards Laboratory (AFSL) may use the test results obtained from AFSL to support certifications that the tested fireworks comply with all rules, bans, standards, or regulations applicable under the Consumer Product Safety Improvement Act of 2008. AFSL estimates that over 80% of U.S. importers and manufacturers currently utilize this voluntary program. All Participants in this voluntary program must maintain all records and documents for three (3) years from date of generation. See http://www.afsl.org/images/Domestic_Certification_Program_Final_012511.pdf (last visited June 12, 2012). --------------------------------------------------------------------------- PHMSA recognizes that under the proposed system manufacturers or their U.S. designated agents may attempt to submit duplicate applications to both a DOT-approved FCA and to PHMSA concurrently. As this new process is designed to promote efficiency while maintaining safety, the submission of duplicate applications under both processes may result in confusion, slower processing, and diminished safety. With this in mind, PHMSA proposes to require a signed certification statement on all applications submitted to either PHMSA or a DOT- approved FCA stating that an application was not submitted to any other entity. PHMSA will be able to verify that duplicative applications are not being submitted by reviewing the certification reports the DOT- approved FCAs will be required to submit to PHMSA. If a manufacturer or its U.S. designated agent submits identical applications to both a DOT- approved FCA and PHMSA, the manufacturer and its U.S. designated agent will be in violation of the HMR and the approval and may be fined under 18 United States Code, or imprisoned for not more than 5 years, or both, except the maximum amount of imprisonment may be 10 years in any case in which the violation involves the release of a hazardous material which results in death or bodily injury to any person (See Sec. 107.333). PHMSA anticipates that the proposed alternative certification process will reduce the processing time that it takes to evaluate an application. As a result, economic burdens caused by a delay in processing approvals will be reduced. Further, it may also promote innovation and potentially create new jobs, as currently no DOT- approved FCAs exist. Additionally, PHMSA will continue to require that Division 1.4G consumer fireworks comply with all other requirements in the HMR, including the shipping paper, marking, labeling, placarding, and incident reporting requirements to ensure safety is not diminished. Should the proposed alternative option be adopted in a future rulemaking, PHMSA plans to develop a guidance document addressing standard operating procedures for the certification of Division 1.4G consumer fireworks. The publication of this guidance document will coincide with the final rule publication. PHMSA seeks general comments on the proposed changes to the fireworks program. PHMSA seeks specific comments on the need for revision of the fireworks program, the economic impact of the proposed changes, safety concerns associated with the proposed changes, as well as comments on how to implement the changes if they are adopted. PHMSA also seeks comments on whether the proposed record retention period of five years is adequate or if the retention period should be expanded to address the longer shelf life of some consumer fireworks. In addition, PHMSA invites all stakeholders and affected entities, including the CPSC, the Bureau of Alcohol, Tobacco, Firearms and Explosives, Customs and Border Patrol, and state and/or local fire and police departments to comment on the proposals. IV. Summary Review of Proposed Amendments In an effort to reduce regulatory burden and provide industry more flexibility, we are proposing structural changes to the regulations relating to PHMSA's fireworks program. Specifically, PHMSA proposes to revise the requirements in five sections (Sec. Sec. 107.402, 107.403, 172.320, 173.56 and 173.59), add two new sections (Sec. Sec. 173.64 and 173.65), and reserve one section (Sec. 107.405). The specific revisions and additions to these sections are detailed below by topic. Fireworks Approval Program We propose moving the current requirements of Sec. 173.56(j) to a standalone new Sec. 173.64 entitled ``Exceptions for Division 1.3 and 1.4 Fireworks.'' In addition, we propose the addition of a new Sec. 173.65 entitled ``Exceptions for Division 1.4G Consumer Fireworks'' that will detail the alternative certification process for Division 1.4G consumer fireworks. To correspond to the changes proposed in this NPRM, we will revise the entry ``UN0336 Fireworks'' in Sec. 172.101 Hazardous Materials Table. Further, a definition for ``consumer firework'' will be added to Sec. 173.59. No modifications are proposed for Sec. Sec. 173.56(f) and 173.56(i). The hazard communication requirements for Division 1.4G consumer fireworks will be specified in paragraph (c) of the new Sec. 173.65 and the revised Sec. 172.320. Specifically, Sec. 172.320 will be revised to reflect the addition of FX numbers. Fireworks Certification Agency (FCA) The process for applying for an approval to operate as a DOT- approved FCA will be found in the proposed revised Sec. 107.402 entitled ``Application for designation as a certification agency.'' General application requirements for designation as a certification agency will be moved to Sec. 107.402(b). No new general application requirements are being proposed in this NPRM. Application requirements specific to Packing and Lighter Certification Agencies will be moved to Sec. 107.402(c). No new application requirements specific to Packing and Lighter Certification Agencies are being proposed in this NPRM. Application requirements to become a DOT-approved FCA will be found in the proposed Sec. 107.402(d). To clarify and provide consistency in the procedural process for designation as a certification agency, the subpart E heading will be entitled ``Designation of Certification Agencies.'' The words ``as an approval or'' will be removed from Sec. 107.402. The word ``approval'' will be replaced with ``certification'' in the Sec. 107.403 heading. Reconsideration for a denial of designation as a fireworks certification agency will be found in Sec. 107.403(c), which will be revised to provide that the procedural requirements of subpart H of this part apply to the process for reconsideration of denials of designations. A new subparagraph (d) will be added to Sec. 107.403 to provide that the procedural requirements of subpart H of this part will also apply to the process for modification, suspension, and termination of designations. Section 107.405 will be deleted and reserved. An overview of the proposed process to be recognized by PHMSA as a DOT-approved FCA is detailed in Figure 1 below. [[Page 52642]] [GRAPHIC] [TIFF OMITTED] TP30AU12.059 Alternative Process for Division 1.4G Consumer Fireworks The procedures for a manufacturer of Division 1.4G consumer fireworks or its U.S. designated agent to submit an application for certification to a DOT-approved FCA will be specified in the new Sec. 173.65(a). These requirements parallel those currently in Sec. 173.56(j); however, they address certification by a DOT-approved FCA, as opposed to PHMSA approval, and describe that fireworks utilizing this review process will be issued an FX number, in lieu of an EX number. The current approval process will continue to be available; however, manufacturers and their U.S. designated agents may voluntarily use the FCA process as an alternative. Diagrams of the current (Figure 2) and proposed (Figure 3) consumer fireworks application processes are shown below. [[Page 52643]] [GRAPHIC] [TIFF OMITTED] TP30AU12.060 [GRAPHIC] [TIFF OMITTED] TP30AU12.061 [[Page 52644]] Reporting and Recordkeeping Requirements DOT-approved FCA reporting requirements on certification activities will be found in Sec. 107.402(d)(8). Recordkeeping requirements requiring the manufacturer, importer, and fireworks certification agency to maintain a record or an electronic image of the record demonstrating compliance with Sec. 173.65 will be found in Sec. 173.65(b). V. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking This notice of proposed rulemaking (NPRM) is published under the authority of the Federal Hazardous Materials Transportation Law, 49 U.S.C. 5101 et seq. Section 5103(b) authorizes the Secretary to prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce. This NPRM provides an alternative to the current process for approving Division 1.4G consumer fireworks more quickly and efficiently, without compromising safety. Furthermore, section 5120(b) authorizes the Secretary of Transportation to ensure that, to the extent practicable, regulations governing the transportation of hazardous materials in commerce are consistent with standards adopted by international authorities. B. Executive Order 13610, Executive Or","truncated":true,"body_characters":83693}