[Federal Register Volume 88, Number 229 (Thursday, November 30, 2023)]
[Proposed Rules]
[Pages 83514-83530]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25887]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 107, 171, and 173

[Docket No. PHMSA-2020-0103 (HM-257A)]
RIN 2137-AF50


Hazardous Materials: Streamlining Requirements for the Approval 
of Certain Energetic Materials

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: PHMSA proposes to amend the Hazardous Materials Regulations to 
revise the classification and approval process for certain low-hazard 
fireworks; to revise classification criteria for small arms cartridges 
to include tracer ammunition; to include the PHMSA portal as the method 
to submit applications for all explosives approvals; and to allow for 
voluntary termination of an explosive approval by the approval holder.

DATES: Comments must be submitted by February 28, 2024. PHMSA will 
consider late-filed comments to the extent possible.

ADDRESSES: You may submit comments by identification of the docket 
number (PHMSA-2020-0103 [HM-257A]) by any of the following methods:
    Federal Rulemaking Portal: https://www.regulations.gov. Follow the 
online instructions for submitting comments.
    Fax: 1-202-493-2251.
    Mail: Docket Management System, U.S. Department of Transportation, 
Docket Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey 
Avenue SE, Washington, DC 20590-0001.
    Hand Delivery: U.S. Department of Transportation, Docket 
Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue 
SE, Washington, DC 20590-0001 between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.
    Instructions: Include the agency name and docket number PHMSA-2020-
0103 (HM-257A) or RIN 2137-AF50 for this rulemaking at the beginning of 
your comment. Note that all comments received will be posted without 
change to https://www.regulations.gov including any personal 
information provided. If sent by mail, comments must be submitted in 
duplicate. Persons wishing to receive confirmation of receipt of their 
comments must include a self-addressed stamped postcard.
    Docket: For access to the public docket to read background 
documents or comments received, visit https://www.regulations.gov or 
the DOT Docket Operations Office (see ADDRESSES).
    Confidential Business Information: Confidential Business 
Information (CBI) is commercial or financial information that is both 
customarily and actually treated as private by its owner. Under the 
Freedom of Information Act (FOIA; 5 U.S.C. 552), CBI is exempt from 
public disclosure. If your comments responsive to this NPRM contain 
commercial or financial information that is customarily treated as 
private, that you actually treat as private, and that is relevant or 
responsive to this NPRM, it is important that you clearly designate the 
submitted comments as CBI. Please mark each page of your submission 
containing CBI as ``PROPIN.'' Submissions containing CBI should be sent 
to Eugenio Cardez, U.S. Department of Transportation, 1200 New Jersey 
Avenue SE, Washington, DC 20590-0001. Any commentary PHMSA receives 
that is not specifically designated as CBI will be placed in the public 
docket for this rulemaking.

FOR FURTHER INFORMATION CONTACT: Mr. Eugenio Cardez, Transportation 
Specialist, Standards and Rulemaking Division, Office of Hazardous 
Materials Safety, 202-366-8553, 1200 New Jersey Avenue SE, Washington, 
DC 20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
    A. Low Hazard Fireworks
    B. Tracer Ammunition
    C. Changes to the Approvals Process
II. Incorporation by Reference Discussion Under 1 CFR Part 51
III. Proposed Amendments
    A. Establishing Exceptions for Ground and Novelty Device 
Fireworks
    B. Authorizing the Self-Classification of Tracer Ammunition
    C. Amending the Approvals Process
IV. Section-by-Section Review
V. Regulatory Analyses and Notices
    A. Statutory/Legal Authority
    B. Executive Orders 12866 and 14094; DOT Regulatory Policies and 
Procedures
    C. Executive Order 13132
    D. Executive Order 13175
    E. Regulatory Flexibility Act and Executive Order 13272
    F. Paperwork Reduction Act
    G. Unfunded Mandates Reform Act of 1995
    H. Draft Environmental Assessment
    I. Privacy Act
    J. Executive Order 13609 and International Trade Analysis
    K. National Technology Transfer and Advancement Act
    L. Severability
    M. Cybersecurity and Executive Order 14028

I. Background

    The pyrotechnic industry is a global logistics supply chain 
comprised of mostly foreign fireworks manufacturers and domestic 
importers, retailers, distributors, carriers, and consumers. Fireworks 
are a Class 1 explosive material in accordance with the Hazardous 
Materials Regulations (HMR; 49 Code of Federal Regulations (CFR) parts 
171-180). Class 1 explosives are divided into six divisions based on 
their explosion hazard: 1.1, 1.2, 1.3, 1.4, 1.5, and 1.6. PHMSA 
proposes to amend the classification and approval process of certain 
low-hazard fireworks of Division 1.4G. As defined in Sec.  173.50 of 
the HMR, Division 1.4 consists of explosives that present a minor 
explosion hazard. Division 1.4 explosives have explosive effects that 
are largely confined to the package; no projection of fragments of 
appreciable size or range is to be expected; and an external fire must 
not cause virtually instantaneous explosion of almost the entire 
contents of the package. Explosives are assigned compatibility codes 
used to specify the controls for the transportation, and storage 
related thereto, of explosives and to prevent an increase in hazard 
that might result if certain types of explosives were stored or 
transported together. Explosives assigned a ``G'' code are not limited 
to fireworks and may also be defined as pyrotechnic substances or 
articles containing a pyrotechnic substance, or articles containing 
both an explosive substance and an illuminating, incendiary, tear-
producing or smoke-producing substance.
    Subpart C of part 173 details requirements for the classification 
and packaging of Class 1 explosive materials and specifies that 
explosives, including fireworks, must be approved and assigned an 
explosives approval number --i.e., an EX number--by PHMSA, based on 
actual testing and classification, prior to transportation to, from, 
and within the United States. Section 173.64 permits Division 1.3G and 
1.4G fireworks to be approved without prior examination based on 
certain conditions, including compliance with the provisions of the 
2018 American Pyrotechnic Association (APA) Standards 87-1A, 1B, and 
1C,

[[Page 83515]]

which are incorporated by reference in Sec.  171.7.\1\ Further, Sec.  
173.65 permits--in lieu of an approval--Division 1.4G consumer 
fireworks (as defined in Sec.  171.8) to be certified by a DOT-approved 
Fireworks Certification Agency (FCA). After the FCA reviews the 
consumer fireworks application and certifies it meets the requirements, 
the FCA assigns an FC number in place of an EX number for Division 1.4G 
consumer fireworks.
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    \1\ The 2018 APA Standards 87-1A, 1B, and 1C were incorporated 
by reference in the Hazardous Materials: Adoption of Miscellaneous 
Petitions To Reduce Regulatory Burdens Final Rule. 85 FR 75680 (Nov. 
25, 2020). See https://www.federalregister.gov/documents/2020/11/25/2020-23712/hazardous-materials-adoption-of-miscellaneous-petitions-to-reduce-regulatory-burdens.
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    All fireworks transported to, from, and within the United States 
must be approved by PHMSA or certified by an FCA. The current approval 
process requires PHMSA personnel to conduct a multi-step review of each 
application, which includes accepting an application, entering 
application data into a database; reviewing the application for 
completeness and compliance with the APA standard; drafting the final 
action letter; conducting the final review; and signing and issuing the 
final approval. PHMSA estimates its review process takes about two 
hours per application, for an estimated 425 labor hours annually. PHMSA 
provides approvals free of charge as a public service to manufacturers. 
However, manufacturers have the option to use commercial FCAs for 
Division 1.4 consumer fireworks, which certify products for a fee, and 
may process approvals faster. See the preliminary regulatory impact 
analysis (PRIA) in the docket for this rulemaking for additional 
information.\2\
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    \2\ The PRIA is available in the regulatory docket (Docket ID: 
PHMSA-2020-0103) at www.regulations.gov.
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A. Low Hazard Fireworks

    Low hazard fireworks refer to a group of explosive articles that 
are not designed to leave ground level, contain no aerial components, 
and contain less than 100 grams of chemical composition per tube. These 
devices have a minimal and well-understood hazard as explosives. 
Specifically, low hazard fireworks can only be manufactured using 
chemicals from the ``Permitted and Restricted Chemical Table for 
Consumer Fireworks and Novelties,'' \3\ and reports \4\ are restricted 
to 50 milligrams of report composition. The European community 
conducted extensive fireworks testing prior to the development of the 
United Nations (UN) default fireworks table. The devices proposed under 
this rulemaking for classification as Division 1.4G fireworks are 
consistent with the UN default table, as well as 30 years of 
classification experience under the APA standards.
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    \3\ https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2021-09/2018%20APA%2087-1%20A.pdf.
    \4\ Report: A concussive effect and flash of light produced by 
the ignition of a chemical composition.
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    Low hazard fireworks include ground and novelty firework devices, 
as currently listed in the 2018 APA Standard 87-1A.
Ground Devices
    The 2018 APA Standard 87-1A defines ``ground device'' as a device 
designed to produce its effects at or near ground level. The following 
17 individual ground devices are defined as low hazard fireworks and 
may be approved or certified for transportation in accordance with the 
HMR provided they meet the requirements for construction, formulation, 
and packaging: Chaser, Crackling Ball, Crackling Strip, Crackling Tube, 
Firecracker, Flasher/Strobe, Flitter Sparkler, Fountain Cone, Fountain 
Cylindrical, Fountain Nitrocellulose, Ground Spinner, Illuminating 
Torch, Smoke, Snake, Specialty Device, Wheel, and Wire Sparkler or 
Dipped Stick.
    Ground devices meeting the provisions of the 2018 APA Standard 87-
1A are classified and described as ``UN0336, Fireworks, Division 
1.4G.'' Currently, ground devices are either approved by PHMSA 
personnel or certified by an FCA upon completion of a multi-step review 
of each application. PHMSA proposes streamlining the approval or 
certification process of these fireworks by allowing self-certification 
using an online application in the PHMSA portal with an automated 
process for review and issuance of a certification. This automated 
process may be used for the low hazard fireworks identified in this 
rule in lieu of the current process and would no longer require PHMSA 
or FCA personnel to conduct time-consuming reviews of each application 
or impose a cost on manufacturers who opt to use a FCA to certify these 
fireworks. Manufacturers of fireworks that meet the required criteria 
for the construction, formulation, and packaging of these ground 
devices--specifically discussed in Section II: Proposed Amendments--
would certify compliance with specified conditions and limitations 
online and receive a certificate with a unique identifier number (i.e., 
FW number) for each firework type. The online system will provide 
immediate comparison of the technical information provided against the 
criteria established for low hazard fireworks. Because of the low 
hazard associated with these fireworks, and because we maintain 
oversight through PHMSA's Quality Assurance and Quality Control (QA/QC) 
review program \5\ of applications submitted through the PHMSA portal, 
PHMSA believes the current safety level for transport of these 
fireworks will be maintained when using this process for certification 
of eligible ground device fireworks.
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    \5\ The PHMSA QA/QC Low Hazard Fireworks Review Program is 
currently under development while completing development of the 
electronic process, and when finalized will be similar to the PHMSA 
Fireworks FCA QA/QC Review Program.
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    Multi-tube devices, such as cake and combination fireworks devices, 
are excluded from this rulemaking. PHMSA is not proposing that multi-
tube devices be allowed to be self-certified via the PHMSA portal at 
this time; however, manufacturers will still use the PHMSA portal for 
submitting an application for the standard explosive approval.
Novelty Devices
    In 1995, PHMSA issued ``Guidance and Criteria for Fireworks 
Novelties,'' which sought to resolve confusion regarding novelty 
devices (i.e., novelties) and PHMSA's explosives regulations. The 
guidance document was later reissued under the same name in 2005 and 
2015, with only editorial changes. The current version \6\ includes 
five novelties that--when shipped domestically by ground, rail, or 
vessel--may be transported as not regulated as explosives when 
manufactured in accordance with the provisions outlined for each type 
of device as specified in the 2001 APA Standard 87-1. The 2018 APA 
Standard 87-1A includes two additional novelties that may be excluded 
from HMR requirements--for a total of seven novelties for consideration 
for approval or certification for transportation as not subject to 
further regulation in accordance with proposed changes to the HMR, 
provided they meet the conditional requirements for construction, 
formulation, packaging, and transportation mode. The seven novelties 
are Booby Trap/Pull Apart, Novelty Flitter Sparkler, Party Popper, 
Novelty Snake, Snapper, Novelty Wire Sparkler or Novelty Dipped Stick, 
and Novelty Smoke Device. However, when these novelties are prepared 
for

[[Page 83516]]

transportation by air, they must be classified and described as 
``UN3178, Flammable solid, inorganic, n.o.s. (novelties)'' and shipped 
in accordance with requirements of the HMR.
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    \6\ See ``Guidance and Criteria for Fireworks Novelties,'' 
available at: https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/approvals-and-permits/hazmat/energetic-materials-approvals/57711/inalguidancefandcriteriaforfireworksnoveltydevices03192015.pdf.
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    A PHMSA approval or FCA certification is not required for novelties 
manufactured in accordance with the provisions outlined for each type 
specified in the APA standards when transported domestically by ground, 
rail, or vessel, but this exception is only applicable within the 
United States and its territories. PHMSA proposes to authorize the use 
of the automated self-certification process to enable the manufacturer 
to receive a certificate for use with international transportation. 
Manufacturers of novelties meeting the required criteria for the 
construction, formulation, and packaging of these devices would certify 
compliance with specified conditions and limitations online and receive 
a certificate with a unique identifier (defined as an ``FW number'') 
for each firework type, in the same manner proposed for ground devices.
    There have been no systemic safety issues or safety concerns 
involving shipments of novelties that meet the requirements of both the 
APA standards and PHMSA's guidance memo. The history of safe shipments 
helps demonstrate that the proposed amendment will not have an adverse 
effect on safe transportation of these fireworks. Rather, the proposed 
changes ++in this NPRM will codify existing guidance to promote 
increased regulatory clarity and consistency, which will--at a 
minimum--maintain the current level of safety. Publication of a final 
rule will supersede previously issued guidance on this matter.

B. Tracer Ammunition

    Section 173.56(h) authorizes self-classification of certain types 
of small arms cartridges into Division 1.4S, provided certain 
conditions are met. Explosives assigned an ``S'' code are defined as 
substances or articles so packed or designed that any hazardous effects 
arising from accidental functioning are limited to the extent that they 
do not significantly hinder or prohibit firefighting or other emergency 
response efforts in the immediate vicinity of the package. In 
particular, Sec.  173.56(h)(3) specifies a condition that the 
ammunition has an inert projectile or is blank. However, the current 
criteria is silent on whether this ammunition includes tracer 
ammunition. Tracer ammunition utilizes a small amount of a pyrotechnic 
charges at the base or as coating of the projectile to make the 
trajectory of the projectile visible to the naked eye. As such, 
considering the Sec.  173.56(h)(3) condition, affected entities have 
expressed uncertainty whether tracer ammunition is considered inert 
and, therefore, qualifies for the exception in paragraph (h). PHMSA 
considers the small amount of pyrotechnic charge as a negligible 
quantity of explosive material compared to the quantity of propelling 
charge contained within the cartridge itself, and this small amount of 
pyrotechnic charge at the base of or coated on the projectile does not 
increase the hazard in a bonfire test nor make unintentional initiation 
any more likely. In this rulemaking, PHMSA is considering allowing 
tracer ammunition to be eligible for self-classification as a Division 
1.4S material provided all criteria outlined in Sec.  173.56(h) are 
met.

C. Changes to the Approval Process

    Currently, as part of the Hazardous Materials Program Procedures, 
in 49 CFR 107.705, the approval process for submitting applications 
includes mail, email, or fax. Although not explicitly stated, PHMSA 
also accepts applications for approvals submitted through the PHMSA 
portal.\7\ PHMSA proposes to amend 49 CFR 107.705 to add the PHMSA 
portal to the current options to submit all types of approval 
applications, and to specify that use of the PHMSA portal will be the 
only option to submit explosives approval applications and to self-
certify manufacture of low hazard fireworks. To be clear, PHMSA 
proposes that from the effective date of a published final rule, 
persons will no longer be able to submit explosives approval 
applications by mail, email, or fax and must use the PHMSA portal. 
PHMSA believes efficiencies will be gained by moving to an electronic 
only service. The PHMSA portal provides the public online access to 
PHMSA services, creating a single source for Hazardous Materials and 
Pipeline Safety applications and data. Persons need only to register to 
create an account to access and use the portal. Further discussion is 
provided in ``Section II.C.''
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    \7\ The PHMSA portal is available online at https://portal.phmsa.dot.gov/phmsapub/faces/PHMSAHome;PHMSAPUB_SESSIONID=aHhG4dIf1U0E2nq599uvQ-
RWl3nzKlgWsLSOcwxPNzx1te7cDD3R!883673165?req=-
3710157719365173927&attempt=0&_afrLoop=1686827584595767&_afrWindowMod
e=0&_afrWindowId=null&_adf.ctrl-state=ns6jrdcpu_1.
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    Furthermore, 49 CFR 107.713 describes the process for the 
modification, suspension, and termination of approvals. As currently 
prescribed in 49 CFR 107.713(c), before an approval is modified, 
suspended, or terminated, PHMSA must provide approval holders an 
opportunity to show cause why the proposed action should not be taken. 
PHMSA proposes to add a new paragraph (e) to allow approval holders to 
request termination of approvals, and to revise paragraph (c) to 
clarify that when an approval holder voluntarily seeks to terminate an 
approval, PHMSA is not required to issue a show cause letter.

II. Incorporation by Reference Discussion Under 1 CFR Part 51

    According to the Office of Management and Budget (OMB), Circular A-
119, ``Federal Participation in the Development and Use of Voluntary 
Consensus Standards and in Conformity Assessment Activities,'' 
government agencies must use voluntary consensus standards wherever 
practical in the development of regulations.
    PHMSA currently incorporates by reference into the HMR all or parts 
of numerous standards and specifications developed and published by 
standard development organizations (SDO). In general, SDOs update and 
revise their published standards every two to five years to reflect 
modern technology and best technical practices. The National Technology 
Transfer and Advancement Act of 1995 (NTTAA; Pub. L. 104-113) directs 
Federal agencies to use standards developed by voluntary consensus 
standards bodies in lieu of government-written standards whenever 
possible. Voluntary consensus standards bodies develop, establish, or 
coordinate technical standards using agreed-upon procedures. OMB issued 
Circular A-119 to implement section 12(d) of the NTTAA relative to the 
utilization of consensus technical standards by Federal agencies. This 
circular provides guidance for agencies participating in voluntary 
consensus standards bodies and describes procedures for satisfying the 
reporting requirements in the NTTAA. Accordingly, PHMSA is responsible 
for determining which standards currently referenced in the HMR should 
be updated, revised, or removed, and which standards should be added to 
the HMR. Revisions to materials incorporated by reference in the HMR 
are handled via the rulemaking process, which allows for the public and 
regulated entities to provide input. During the rulemaking process, 
PHMSA must also obtain approval from the Office of the Federal Register 
to incorporate by reference any new materials. The Office of the 
Federal Register issued a rulemaking \8\ that

[[Page 83517]]

revised 1 CFR 51.5 to require that an agency detail in the preamble of 
an NPRM the ways the materials it proposes to incorporate by reference 
are reasonably available to interested parties, or how the agency 
worked to make those materials reasonably available to interested 
parties.
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    \8\ 79 FR 66278 (Nov. 7, 2014).
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    The following standards appear in the regulatory text of this NPRM 
and have already been approved for the locations in which they appear: 
(1) APA 87-1A: Standard for the Construction, Classification, Approval 
and Transportation of Consumer Fireworks; (2) APA 87-1B: Standard for 
the Construction, Classification, Approval, and Transportation of 
Display Fireworks; and (3) APA 87-1C: Standard for the Construction, 
Classification, Approval, and Transportation of Entertainment Industry 
and Technical Pyrotechnics. No changes to these standards are proposed 
in this NPRM.

III. Proposed Amendments

    To streamline procedural requirements for fireworks manufacturers 
and shippers, PHMSA proposes changes to the regulations relating to 
PHMSA's explosives approval program specific to fireworks. PHMSA also 
proposes changes to the HMR to address classification and packaging 
inconsistencies for tracer ammunition. PHMSA will continue to use the 
current approval process for Division 1.4G consumer fireworks in 
accordance with requirements specified in Sec. Sec.  173.56(b), (f), or 
(i), and 173.65. However, instead of the current approval process, 
PHMSA proposes to permit manufacturers to self-certify classification 
of certain ground and novelty device fireworks using the PHMSA portal, 
as discussed previously and further below. Furthermore, PHMSA proposes 
to revise the self-classification of inert projectile cartridges in 
Sec.  173.56(h) to include tracer ammunition; amend 49 CFR 107.705 to 
require use of the PHMSA portal as the only submittal option for 
explosives approval applications; and amend 49 CFR 107.713 to clarify 
that an approval holder may voluntarily terminate an approval and that 
a show cause letter from PHMSA is unnecessary when approval holders 
request to terminate approvals voluntarily.
    In the PRIA supporting this rulemaking, PHMSA determined that the 
aggregate benefits of the amendments proposed justify their aggregate 
costs. If adopted in a final rule, the amendments proposed herein are 
expected to reduce the paperwork burden on the regulated community and 
PHMSA personnel since fewer paper-based explosives approval 
applications will be submitted and processed. The overall net benefits 
include a cost savings of 425 labor hours annually. See the PRIA for 
additional information. These cost savings will not have a material 
effect on the safety impact of PHMSA's explosives approval program.

A. Establishing Exceptions for Ground and Novelty Device Fireworks

    PHMSA proposes to revise Sec.  173.64 to outline the exceptions for 
ground and novelty device fireworks. Specifically, for certain low 
hazard fireworks of these types, the section would authorize exception 
from the standard explosive device approval process for classification 
of Division 1.4G fireworks. These exceptions would be implemented by 
establishing an automated process within the PHMSA portal for self-
certification, review of the information provided, and issuance of a 
certificate with a unique identification (i.e., FW number). This 
process may be used for the ground and novelty devices identified in 
this rulemaking in lieu of the current explosive approval process. 
PHMSA personnel would no longer be required to conduct a time-consuming 
review of each application. The automated review process will require 
the same information as currently required by the HMR. However, the 
diagram of the device and chemical formulation sheets will not require 
firsthand review by PHMSA personnel when compliance is certified by the 
applicant. PHMSA believes this proposed change is consistent with our 
Agency mission to protect the health and safety of the public and the 
environment, and consistent with Executive Order 12866 \9\ that in part 
calls for agencies to examine existing regulations and identify and 
assess available alternatives to direct regulation. In this case, the 
current regulations to ensure the safe transport of explosives require 
explosives--such as fireworks--to be examined, classed, and approved by 
PHMSA; and further that certain fireworks manufactured according to APA 
87-1A may be certified for transportation by a DOT-approved FCA 
instead. PHMSA believes that upon examination of the existing 
regulation and in consideration of the low safety hazard associated 
with certain ground and novelty devices, this proposal to streamline 
the process authorizing their manufacture and transport by self-
certification benefits the public. PHMSA proposes that self-
certification will introduce efficiencies and maintain the safety of 
transporting these fireworks under the HMR. To correspond to the 
changes proposed in this NPRM, PHMSA proposes to add a definition for 
``low hazard firework'' to Sec.  173.59.
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    \9\ 58 FR 51735 (Oct. 4, 1993).
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Ground Devices
    PHMSA proposes that ground device fireworks certified using the 
PHMSA portal as conforming to the construction, formulation, and 
packaging requirements in revised Sec.  173.64, will be authorized for 
transport as ``UN0336, Fireworks, 1.4G.'' Seventeen ground devices will 
be eligible for this new certification process: Chaser, Crackling Ball, 
Crackling Strip, Crackling Tube, Firecracker, Flasher/Strobe, Flitter 
Sparkler, Fountain Cone, Fountain Cylindrical, Fountain Nitrocellulose, 
Ground Spinner, Illuminating Torch, Smoke, Snake, Specialty Device, 
Wheel, and Wire Sparkler or Dipped Stick. Multi-tube devices,\10\ such 
as cake and combination devices, are excluded from eligibility for 
certification using the automated process.
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    \10\ Multi-tube devices are devices with more than one tube that 
contains fireworks (i.e., pyrotechnic effects).
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    PHMSA proposes specific criteria for manufacturing (construction 
and formulation) and packaging of these ground devices. The fireworks 
would be subject to both general and specific requirements as presented 
below in the table of Proposed Criteria for Ground Devices. The 
proposed general requirements for ground devices are as follows:
    <bullet> Devices must use chemicals in conformance with the 
permitted and restricted chemical table in the edition of APA Standard 
87-1A, Appendix 1, incorporated by reference in Sec.  173.64. The 2018 
edition of the standard is currently incorporated by reference. Note 
that all chemical specifications in the table are maximum limits.
    <bullet> All reports are limited to 50 mg (0.050 g) of composition 
per report.
    <bullet> All devices are initiated by a safety fuse with the 
exception of firecrackers, flitter sparklers, nitrocellulose fountains, 
snakes, wire sparklers, or dipped sticks.
    <bullet> All devices must be finished (they cannot be a component 
intended to be used in another device).
    <bullet> All devices must successfully pass a thermal stability 
test as specified in Sec.  173.64(a)(2).
    <bullet> Each device must be marked with the alphanumeric PHMSA-
assigned certification number (``FW number'') consisting of the letters 
FW, followed by

[[Page 83518]]

the year and month issued, and a sequential number based on order of 
issuance that year (e.g., FWYYYYMMSSSS). If the device is too small, 
the package that contains the device must display the certification 
number.
    The specific requirements for each of the 17 eligible ground device 
types are as follows:

                                      Proposed Criteria for Ground Devices
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                Device                        Definition           Specification \11\       Special conditions
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Chaser...............................  Consists of a paper or   20 total grams of        None.
                                        cardboard tube, which    chemical composition,
                                        vents out the fuse end   with multiple reports
                                        of the tube.             permitted.
Crackling Ball.......................  Consists of a spherical  20 total grams of        Inner packaging cannot
                                        ball that contains       chemical composition,    exceed 72 grams of
                                        small granules of        with no reports          composition.
                                        chemical composition     permitted.
                                        that upon ignition
                                        produce sparks and/or
                                        a crackling effect.
Crackling Strip......................  Consists of small        20 total grams of        Inner packaging cannot
                                        granules of chemical     chemical composition,    exceed 72 grams of
                                        composition adhered to   with no reports          composition.
                                        and encased in a paper   permitted.
                                        or cardboard wrapping
                                        that upon ignition
                                        produce sparks and/or
                                        a crackling effect.
Crackling Tube.......................  Consists of a tube that  20 total grams of        Inner packaging cannot
                                        contains small           chemical composition,    exceed 72 grams of
                                        granules of chemical     with no reports          composition.
                                        composition that upon    permitted.
                                        ignition produce
                                        sparks and/or a
                                        crackling effect.
Firecracker..........................  Consists of a small      50 milligrams of         Multiple firecrackers
                                        paper-wrapped or         chemical composition     can be fused together
                                        cardboard tube that      per firecracker.         to form a string.
                                        produces a single                                 There is no limit on
                                        report.                                           number of firecrackers
                                                                                          in a string.
Flasher/Strobe.......................  Consists of a paper-     5 total grams of         Inner packaging cannot
                                        wrapped or cardboard     chemical composition,    exceed 60 grams of
                                        tube that produces a     with no reports          composition.
                                        crackling/flashing/      permitted.
                                        strobing light effect.
Flitter Sparkler.....................  Consists of a paper or   25 total grams of        None.
                                        cardboard tube           chemical composition,
                                        attached to a stick or   with no reports
                                        wire. Upon ignition,     permitted..
                                        the device produces a   Formulations containing
                                        shower of sparks, a      chlorates are limited
                                        colored flame and/or a   to 4 grams with no
                                        crackling effect.        more than 15 percent
                                                                 of the formulations
                                                                 being chlorates.
Fountain (Cone)......................  Consists of a conical    50 total grams of        None.
                                        paper or cardboard       chemical composition,
                                        container that upon      with no reports
                                        ignition produces a      permitted.
                                        shower consisting of
                                        any combination of
                                        colored sparks, color
                                        flame, crackle, smoke,
                                        whistle and/or micro
                                        star effects.
Fountain (Cylindrical)...............  Consists of a paper or   100 total grams of       None.
                                        cardboard tube that      chemical composition,
                                        upon ignition produces   with no reports
                                        a shower consisting of   permitted.
                                        any combination of
                                        colored sparks, color
                                        flame, crackle, smoke,
                                        and whistle or micro
                                        star effects.
Fountain (Nitrocellulose)............  Consists of a paper or   15 total grams of        None.
                                        cardboard cone or tube   chemical composition,
                                        device that produces a   with no reports
                                        shower of small          permitted.
                                        sparks, color, and
                                        flame as its primary
                                        effect using
                                        nitrocellulose as the
                                        major chemical
                                        component.
Ground Spinner.......................  Consists of a paper or   20 total grams of        Multiple ground
                                        cardboard tube that      chemical composition,    spinners can be fused
                                        upon ignition emits a    with reports permitted.  together to form a
                                        shower of colored                                 string. Strings are
                                        sparks that vents out                             limited to 20 grams of
                                        of an orifice, causing                            total composition.
                                        the device to spin
                                        rapidly on the ground.
Illuminating Torch...................  Consists of a paper or   100 total grams of       None.
                                        cardboard tube that      chemical composition,
                                        upon ignition, emits a   with no reports
                                        colored flame with or    permitted.
                                        without crackles or
                                        sparks.

[[Page 83519]]

 
Smoke................................  Consists of a paper or   100 total grams of       Multiple smoke devices
                                        cardboard tube that      chemical composition.    can be fused together
                                        upon ignition, emits     All mixtures             to form a string.
                                        smoke as the primary     containing a chlorate    Strings are limited to
                                        effect.                  must contain an equal    100 grams of total
                                                                 amount or greater        composition.
                                                                 amount of a carbonate
                                                                 or bicarbonate.
Snake................................  Consists of pressed      20 total grams of        None.
                                        pellet of pyrotechnic    chemical composition,
                                        composition that upon    with no reports.
                                        ignition, produces a    Only formulations of
                                        snake-like ash that      nitrated asphalt,
                                        expands in length as     asphaltum, bitumen,
                                        the composition is       pitch, and/or tar with
                                        consumed.                an oxidizer (with or
                                                                 without a binder) are
                                                                 permitted.
Specialty Device.....................  Consists of a paper or   20 total grams of        No tube can contain
                                        cardboard tube(s),       chemical composition,    more than 2 grams of
                                        e.g., in the shape of    with reports permitted.  composition; tubes
                                        an animal or a small                              cannot contain aerial
                                        vehicle, that produces                            components or internal
                                        multiple effects.                                 shells.
Wheel................................  Consists of a paper or   200 total grams of       None.
                                        cardboard tube placed    chemical composition,
                                        on the ground or         with no reports.
                                        attached to a post, by  No tube can contain
                                        means of a nail,         more than 60 total
                                        spike, or string. Upon   grams of composition,
                                        ignition, the wheel      which includes a 20
                                        rotates producing a      gram propellant limit
                                        shower of sparks,        per tube.
                                        color, crackling,       Tubes cannot contain
                                        flame, or whistle        aerial components..
                                        effects.                Handles are not
                                                                 permitted..
Wire Sparkler or Dipped Stick........  Consists of a metal      100 total grams of       Inner packaging cannot
                                        wire or wood dowel       chemical composition,    exceed 120 grams of
                                        coated with a chemical   with no reports          composition.
                                        composition. Upon        permitted.
                                        ignition, the device    Formulations containing
                                        produces a shower of     chlorates are limited
                                        sparks, a colored        to four grams with no
                                        flame, and/or a          more than 15 percent
                                        crackling effect.        of the formulations
                                                                 being chlorates.
----------------------------------------------------------------------------------------------------------------

    Currently, manufacturers may submit low hazard fireworks approvals 
through the PHMSA portal, email, or mail, although all applications in 
the past several years have been through the PHMSA portal. A 
manufacturer follows a multi-step process to receive a certificate 
using PHMSA's automated process for review of low hazard fireworks. 
First, the applicant must register with PHMSA to create an account to 
use the PHMSA portal and provide the following contact information: 
company name, contact person, title, address, phone, and email address; 
manufacturing location; and U.S. agent (if applicable), address, phone, 
and email Address. A unique profile is created for each applicant based 
on their email address, which allows repeated access. If already 
registered with the PHMSA portal, persons must ensure all necessary 
information is provided to allow for self-certification. Applicants are 
required to create complex passwords in accordance with DOT's password 
requirements.
---------------------------------------------------------------------------

    \11\ This column describes the chemical composition weight 
limits per tube and whether reports are permitted.
---------------------------------------------------------------------------

    Then, the applicant must provide specific information about a 
device and certify the construction, chemical composition, and 
packaging are in accordance with the HMR. This step requires the 
applicant to respond to the following questions:
    <bullet> What is the name and/or product code of the device? (Must 
be unique.)
    <bullet> What is the category of the ground device? (There will be 
a drop down menu with the 17 authorized ground devices.)
    <bullet> What is the maximum weight in grams of chemical 
composition in the device?
    <bullet> Does the device contain a report? (List how many reports.)
    <bullet> What is the maximum weight in milligrams of any single 
report in the device?
    <bullet> What is the total report weight in milligrams in the 
device?
    <bullet> Did the device pass a thermal stability test?
    <bullet> Does the device comply with the Permitted and Restricted 
Chemicals Table found in the APA Standard 87-1A, Appendix 1, currently 
incorporated by reference in Sec.  173.64?
    <bullet> Does the device use a safety fuse for ignition?
    <bullet> Does the device meet one of the descriptions listed in 
Sec.  173.64?
    <bullet> Do you certify the device will be manufactured and 
transported in accordance with all the statements you attested to 
above?
    Finally, the chemical composition and diagram of the ground device 
must be entered into and uploaded to the PHMSA portal. A certificate 
will be issued for each device following the successful completion of 
the process. The certificate will contain the unique alphanumeric 
certification number described above.

Novelty Devices

    Similarly, PHMSA proposes that novelty devices (i.e., novelties) 
certified using the PHMSA portal as conforming to the construction, 
formulation, and packaging requirements in revised Sec.  173.64 will be 
authorized for transport and not subject to further regulation except 
for air transport. Although these novelty devices are considered 
Division 1.4 fireworks, consistent with the guidance discussed in 
Section I.A and as a condition for self-certification, novelty devices 
will be classed for transport as ``UN3178, Flammable solid, inorganic, 
n.o.s. (Novelties), 4.1, PG II,'' when transported internationally or 
by

[[Page 83520]]

air. Seven novelties will be eligible for this new certification 
process: Booby Trap/Pull Apart, Novelty Flitter Sparkler, Party Popper, 
Novelty Snake, Snapper, Novelty Wire Sparkler or Novelty Dipped Stick, 
and Novelty Smoke Device. Therefore, manufacturers may receive a 
certification for international transportation when it is required. 
Consistent with the 2015 guidance document, PHMSA considers certain 
novelties--identified in this NPRM as excepted from further 
regulation--as explosives under the HMR, subject to certain 
transportation conditions. However, PHMSA acknowledges that this 
exception is unique to the United States and complicates transportation 
of these fireworks into or out of the United States. Therefore, to 
facilitate international transportation of novelties, PHMSA proposes to 
issue a unique identifier number (FW number) as part of the automated 
self-certification process. This process facilitates the certification 
process and movement of novelty devices outside of the United States 
where they are classified the same way but not offered the same 
exceptions.
    Novelties must comply with both the general and specific 
requirements for manufacture and packaging as provided in the table of 
Proposed Criteria for Novelties. The proposed general requirements for 
novelty devices are as follows:
    <bullet> Devices that do not list specific chemical restrictions 
must use chemicals in conformance with the permitted and restricted 
chemical table in the APA Standard 87-1A, Appendix 1, incorporated by 
reference in Sec.  173.64. The 2018 edition is currently incorporated 
by reference. Note that all chemical specifications in the table are 
maximum limits.
    <bullet> No reports are permitted in novelties.
    <bullet> Smoke devices must be initiated by a fuse.
    <bullet> Devices must be finished and packaged in the inner 
packagings.
    <bullet> All novelties must successfully pass a thermal stability 
test specified in Sec.  173.64(a)(2).
    <bullet> Each device must be marked with the alphanumeric PHMSA-
assigned certification number (FW number), followed by the year and 
month issued, and a sequential number based on order of issuance that 
year (e.g., FWYYYYMMSSSS). If the device is too small, the package that 
contains the device must display the certification number.
    The specific requirements for each of the seven novelty types is as 
follows:

                                         Proposed Criteria for Novelties
----------------------------------------------------------------------------------------------------------------
               Novelty                        Definition             Specifications         Special conditions
----------------------------------------------------------------------------------------------------------------
Booby Trap/Pull Apart................  Device that is actuated  0.016 total grams of     Inner packages must not
                                        by means of friction.    chemical composition,    contain more than 12
                                        Pulling a string or      which is limited to      devices.
                                        strings apart            barium, potassium, and/
                                        activates the device,    or sodium chlorate
                                        producing a noise        with red phosphorus.
                                        effect.
Novelty Flitter Sparkler.............  Consists of a paper or   5 total grams of         Inner packages must not
                                        cardboard tube           chemical composition,    contain more than 8
                                        attached to a stick or   with no reports          devices, and an
                                        wire. Upon ignition,     permitted.               ignition fuse is
                                        the device produces a    Formulations             permitted.
                                        shower of sparks, a      containing chlorates
                                        colored flame, and/or    are limited to 4 grams
                                        a crackling effect.      with no more than 15
                                                                 percent of the
                                                                 formulation being
                                                                 chlorates.
Party Poppers........................  Device that is actuated  0.016 total grams of     Inner packages must not
                                        by means of friction.    chemical composition,    contain more than 72
                                        Pulling a string or      which is limited to      devices.
                                        trigger activates the    barium, potassium, and/
                                        device, producing a      or sodium chlorate
                                        noise effect and         with red phosphorus.
                                        releasing paper
                                        streamers or confetti.
                                        Common examples
                                        resemble champagne
                                        bottles and toy
                                        pistols.
Novelty Snakes and Glow-Worms........  Consists of pressed      2 total grams of         Inner packaging must
                                        pellet of pyrotechnic    chemical composition.    not contain more than
                                        composition that upon    Only formulations of     25 devices
                                        ignition, produce a      nitrated asphalt,
                                        snake-like ash that      asphaltum, bitumen,
                                        expands in length as     pitch, and/or tar with
                                        the composition is       an oxidizer (with or
                                        consumed.                without a binder) are
                                                                 permitted.
Snappers.............................  Consists of small,       0.001 total grams of     Inner packages must not
                                        paper-wrapped items.     silver fulminate         contain more than 50
                                        When dropped, the        coated on small bits     devices with sawdust
                                        device activates,        of sand or gravel.       or other impact
                                        producing a noise                                 absorbing materials.
                                        effect.
Novelty Wire Sparkler or Novelty       Consists of a metal      25 total grams of        Inner packages must not
 Dipped Stick.                          wire or wood dowel       chemical composition,    contain more than 8
                                        coated with a chemical   with no reports          devices.
                                        composition. Upon        permitted.
                                        ignition, the device     Formulations
                                        produces a shower of     containing
                                        sparks, a colored        perchlorates are
                                        flame, and/or a          limited to 5 grams.
                                        crackling effect.        Formulations
                                                                 containing chlorates
                                                                 are limited to 4 grams
                                                                 with no more than 15
                                                                 percent of the
                                                                 formulations being
                                                                 chlorates.

[[Page 83521]]

 
Novelty Smoke Device.................  Consists of a paper or   5 total grams of         Inner packages must not
                                        cardboard tube that      chemical composition,    contain more than 72
                                        upon ignition, emits     with no reports          devices.
                                        smoke as the only        permitted. All
                                        effect.                  mixtures containing a
                                                                 chlorate must contain
                                                                 an equal amount or
                                                                 greater amount of a
                                                                 carbonate or
                                                                 bicarbonate (e.g.
                                                                 calcium carbonate,
                                                                 sodium bicarbonate).
----------------------------------------------------------------------------------------------------------------

    Novelties must be in inner packagings that must be further packed 
in strong outer packagings. The packages must conform to the 
requirements of Sec.  173.24. The maximum gross weight of a completed 
package may not exceed 30 kilograms (66 pounds). Additionally, each 
outer package, and an overpack if used, must be plainly marked with 
``NOVELTIES, IN CONFORMANCE WITH Sec.  173.64, NOT REGULATED, EXCEPT 
WHEN TRANSPORTED BY AIR.'' When novelties are transported by air, they 
must be classed and described as ``UN3178, Flammable solid, inorganic, 
n.o.s. (Novelties), 4.1, PG II,'' and packaged for transport 
accordingly.
    Similar to ground devices, an applicant will follow a multi-step 
process to self-certify using PHMSA's automated process for review of 
low hazard fireworks. First, the applicant must register with PHMSA to 
create an account for use of the PHMSA portal and provide the following 
contact information: company name, contact person, title, address, 
phone, and email address; manufacturing location; and U.S. agent (if 
applicable), address, phone, and email address. A unique profile is 
created for each applicant based on their email address, which allows 
repeated access. If already registered with the PHMSA portal, persons 
must ensure all necessary information is provided to allow self-
certification. Applicants are required to create complex passwords in 
accordance with DOT's password requirements.
    Then, the applicant must provide the specific information about a 
novelty and certify that the construction, chemical composition, and 
packaging are in accordance with the HMR. This step requires the 
applicant to respond to the following questions:
    <bullet> What is the name and/or product code of the device? (Must 
be unique.)
    <bullet> What is the category of the novelty? (There will be a 
drop-down menu with the seven authorized novelties.)
    <bullet> What is the maximum weight in grams of chemical 
composition in the device?
    <bullet> Did the device pass the thermal stability test described 
in 49 CFR 173.64(a)(2)?
    <bullet> Does the device comply with the Permitted and Restricted 
Chemicals Table found in the APA Standard 87-1A, Appendix 1, currently 
incorporated by reference in Sec.  173.64?
    <bullet> Does the novelty comply with the specific restrictions 
listed in the Table of Authorized Novelty Devices and Specifications?
    <bullet> Does the device use a safety fuse for ignition?
    <bullet> Does the novelty meet a device description listed in Sec.  
173.64?
    <bullet> Do you certify the device will be manufactured and 
transported in accordance with all the statements attested to above?
    Finally, the chemical composition and diagram must be entered into 
and uploaded to the PHMSA portal. A certificate will then be issued for 
each novelty following the successful completion of the process. The 
certificate will contain the unique alphanumeric certification number 
described above. The certificate will indicate the description and 
classification of the device as ``UN3178, Flammable solid, inorganic, 
n.o.s. (Novelties), 4.1, PG II'' for international transportation and 
domestic air transportation, and that it is not regulated as a Class 1 
explosive when transported domestically by vessel, highway, or rail.

Fireworks Identification Scheme

    As a baseline, fireworks must be approved and assigned an 
explosives approval number by PHMSA (EX number) based on actual testing 
and classification prior to transportation to, from, and within the 
United States. However, Sec.  173.64 permits Division 1.3G and 1.4G 
fireworks to be approved without prior examination based on certain 
conditions, including compliance with the provisions of the 2018 APA 
Standards 87-1A, 1B, and 1C, which are incorporated by reference in 
Sec.  171.7. Further, Sec.  173.65 permits--in lieu of an approval--
Division 1.4G consumer fireworks (as defined in Sec.  171.8) to be 
certified by a DOT-approved FCA. After the FCA reviews the consumer 
fireworks application and certifies it meets the requirements, the FCA 
assigns an FC number.
    However, in this NPRM, PHMSA is proposing to streamline the process 
for approval or certification of low hazard fireworks by allowing self-
certification using an online application in the PHMSA portal with an 
automated process for review and issuance of a certification. This 
automated process may be used for the low hazard fireworks identified 
in this rulemaking in lieu of the current process and would no longer 
require PHMSA or FCA personnel to conduct time-consuming reviews of 
each application or impose a cost on manufacturers who opt to use an 
FCA to certify these fireworks. Manufacturers of fireworks that meet 
the required criteria for the construction, formulation, and packaging 
of these low hazard fireworks--specifically discussed in Section II. 
Proposed Amendments--would certify compliance with specified conditions 
and limitations online and receive a certificate with a unique 
identifier number (FW number) for each firework type. The FW number 
will identify a low hazard firework that has been certified through the 
newly proposed automated approval process as specified in Sec.  173.64. 
An example of an FW number would be ``FW2023100001'' consisting of the 
letters FW, followed by the year and month issued, and a sequential 
number based on order of issuance that year.
    Given the long history and wide recognition of the EX and FC 
numbering scheme, PHMSA seeks specific comments on the supply chain 
implications, the economic impact and safety concerns associated with 
the proposed FW numbering system, as well as comments on how to 
implement the changes if they are adopted. For example, will the use of 
different alpha designators (i.e., EX, FC and FW) pose complications or 
confusion within the

[[Page 83522]]

transportation system? If so, please provide a suggested alternative to 
FW.

B. Authorizing the Self-Classification of Tracer Ammunition

    Section 173.56(h) authorizes self-classification of certain types 
of small arms cartridges into Division 1.4S, provided certain 
conditions are met. In particular, Sec.  173.56(h)(3) authorizes 
ammunition with inert projectile or blank ammunition. Tracer ammunition 
utilizes a small amount of pyrotechnic composition to provide visible 
light upon exit from a gun barrel. Due to the presence of the 
pyrotechnic composition, it is unclear whether tracer ammunition would 
qualify as an ``inert'' projectile. However, there is a negligible 
quantity of pyrotechnic composition in tracer ammunition compared to 
the quantities of pyrotechnic material contained within the projectile 
itself, and its presence neither increases the hazard in a bonfire test 
nor makes unintentional initiation any more likely.
    The difference in hazard between inert projectile cartridges and 
the same cartridges with a small amount of pyrotechnic composition is 
negligible. Furthermore, there are no additional concerns related to 
tracer ammunition that justify exclusion from the self-classification 
provision of Sec.  173.56(h)(3). Therefore, PHMSA proposes to amend 
Sec.  173.56(h)(3) to also authorize self-classification of tracer 
ammunition that meets all other criteria outlined in Sec.  
173.56(h)(3).

C. Amending the Approvals Process

    PHMSA currently provides several options for submittal of 
applications for approvals including mail, email, fax, and the PHMSA 
portal, although this latter method is not codified as an option. As 
such, PHMSA proposes to amend 49 CFR 107.705 to include the PHMSA 
portal as a submittal option for all approvals. Furthermore, PHMSA 
proposes to make the PHMSA portal the only method for submittal and 
acceptance of explosives approval applications, and to remove current 
options to submit those applications via mail, email, or fax. 
Transitioning to an all-electronic system will improve efficiency. 
Delays often occur when PHMSA personnel must transcribe application 
information into the portal database due to incomplete data, inability 
to read handwritten materials, and so forth. Where missing data or 
uncertainties are discovered, PHMSA personnel must follow up with the 
applicant or otherwise reject an application, which causes further 
delays. Electronic submissions will improve efficiency for the 
applicant on the front end (data entry) and for PHMSA on the back end 
(review and issuance of approval). The PHMSA portal provides online 
access to PHMSA services, creating a single source for all Hazardous 
Materials explosives applications and data. Persons need only to 
register to create an account and access the portal.
    Finally, PHMSA proposes to add a new paragraph 49 CFR 107.705(e) to 
allow approval holders to request termination of approvals, and to 
amend 49 CFR 107.713(c) to clarify that when an approval holder 
voluntarily requests termination, PHMSA is not required to issue a show 
cause letter.

IV. Section-by-Section Review

    The following is a section-by-section review of the proposed 
amendments to the HMR.

Part 107

Section 107.705
    Section 107.705 prescribes the requirements for submitting 
registrations, reports, and applications for approval. PHMSA proposes 
revising paragraph (a)(1) to specify the PHMSA portal may also be used 
to file all approval applications with PHMSA and is the only authorized 
method for submitting explosives approval applications, and proposes 
removing options to submit those explosives applications via mail, 
email, or fax for all explosives approvals.
Section 107.713
    Section 107.713 prescribes procedures for the issuance, 
modification, and termination of approvals required by the HMR. PHMSA 
proposes to revise 49 CFR 107.713(c) introductory text to indicate a 
PHMSA show cause letter is not necessary for voluntary termination of 
an approval; and add a new paragraph (e) to clarify approval holders 
may voluntarily request termination of an approval. PHMSA will then 
issue a termination letter, rather than a show cause letter.

Part 171

Section 171.8
    Section 171.8 provides definitions and abbreviations. PHMSA 
proposes to define the term ``FW number'' as a number preceded by the 
prefix ``FW,'' assigned by PHMSA to a Division 1.4G Consumer firework 
device that has been certified under the provisions of Sec.  173.64.

Part 173

Section 173.56
    Section 173.56 prescribes the procedures for classification and 
approval of new explosives. Small arms cartridges meeting the criteria 
in paragraph (h) may be self-classified as Division 1.4S by the 
manufacturer. PHMSA proposes to modify Sec.  173.56(h)(3) to provide 
clarity that tracer ammunition with inert projectiles is also eligible 
for self-classification as a Division 1.4S material provided all other 
criteria outlined in Sec.  173.56(h) are met. This proposal will 
maintain the current level of safety with the HMR by ensuring proper 
understanding of what types of explosives may be classified or self-
classified.
Section 173.59
    Section 173.59 provides informational descriptions of terms for 
explosives. PHMSA is adding a separate term and description for ``low 
hazard fireworks.'' This proposal will maintain the current level of 
safety with the HMR by ensuring proper understanding of what explosives 
may qualify for the low hazard fireworks exceptions.
Section 173.64
    Section 173.64 prescribes classification and approval exceptions 
from the standard explosives approval process for Division 1.3 and 1.4 
fireworks. PHMSA proposes to revise Sec.  173.64 to include further 
exceptions for low hazard consumer fireworks that qualify for self-
certification. Specifically, paragraph (b) will outline criteria for 
self-certification of certain ground and novelty devices as Division 
1.4 fireworks. Seven novelties will be eligible for self-certification 
and exception from the HMR, and 17 ground devices will be eligible for 
self-certification and classification as Division 1.4G fireworks. PHMSA 
also proposes to make some editorial changes to paragraph (a) 
consistent with revision to paragraph (b), such as adding a title to 
paragraph (a) and clarifying further the reference to Sec.  173.65 for 
certification of Division 1.4G consumer fireworks by an FCA. This 
proposal will maintain the current level of safety with the HMR by 
ensuring proper understanding of which ground and novelty devices may 
qualify for this exception.

V. Regulatory Analyses and Notices

A. Statutory/Legal Authority

    This NPRM is published under the authority of Federal Hazardous 
Materials Transportation Act (HMTA; 49 U.S.C. 5101-5127). Section 
5103(b)

[[Page 83523]]

of the HMTA authorizes the Secretary of Transportation to prescribe 
regulations for the safe transportation of hazardous materials (HAZMAT) 
in intrastate, interstate, and foreign commerce. The Secretary has 
delegated the authority granted in the HMTA to the PHMSA Administrator 
at 49 CFR 1.97(b).

B. Executive Orders 12866 and 14094; DOT Regulatory Policies and 
Procedures

    Executive Order 12866 (``Regulatory Planning and Review''), as 
amended by Executive Order 14094 (``Modernizing Regulatory Review'' 
\12\), requires agencies to regulate in the ``most cost-effective 
manner,'' to make a ``reasoned determination that the benefits of the 
intended regulation justify its costs,'' and to develop regulations 
that ``impose the least burden on society.'' Similarly, DOT Order 
2100.6A (``Policies and Procedures for Rulemakings'') requires PHMSA 
rulemaking actions include ``an assessment of the potential benefits, 
costs, and other important impacts of the regulatory action,'' and (to 
the extent practicable) the benefits, costs, and any significant 
distributional impacts, including any environmental impacts.
---------------------------------------------------------------------------

    \12\ 88 FR 21879 (Apr. 11, 2023).
---------------------------------------------------------------------------

    Executive Order 12866 and DOT Order 2100.6A require PHMSA submit 
``significant regulatory actions'' to the Office of Management and 
Budget (OMB) for review. This rulemaking is not considered a 
significant regulatory action under section 3(f) of Executive Order 
12866 (as amended by Executive Order 14094) and therefore, was not 
formally reviewed by OMB. This rulemaking is also not considered a 
significant rule under DOT Order 2100.6A.
    The following is a brief summary of costs, savings, and net 
benefits of some of the amendments proposed in this notice. PHMSA has 
developed a more detailed analysis of these costs and benefits in the 
PRIA, a copy of which has been placed in the docket. PHMSA seeks public 
comment on its proposed revisions to the HMR, and the preliminary cost 
and benefit analyses in the PRIA.
    PHMSA estimates the costs associated with permitting self-
certification of low-hazard fireworks are minimal. The actual standards 
required by the HMR for low-hazard fireworks are not affected by this 
rule change, merely allowing manufacturers to self-certify that the 
products meet those standards. PHMSA estimates the self-certifying 
application process for manufacturers will not add any additional time 
burdens as the approval information required for an approval will not 
be affected. PHMSA estimates approvals handled by PHMSA take 
approximately two hours per application. Of that time 30 minutes are 
required for data entry, 60 minutes for managerial review, and another 
30 minutes for signature review and approval. Allowing self-
classification, therefore, would save PHMSA 425 labor hours annually.
    PHMSA emphasizes the proposed amendment for tracer ammunition is 
merely a formal codification and adoption of a policy in place since 
2002. The proposed change would make the policy's definition into a 
formal regulation. Considering the long-standing nature of the 2002 
policy, there would be minimal burdens to formally adopting the policy 
into the HMR.

C. Executive Order 13132

    PHMSA analyzed this rulemaking in accordance with the principles 
and criteria contained in Executive Order 13132 (Federalism) \13\ and 
the Presidential Memorandum (Preemption).\14\ Executive Order 13132 
requires agencies to assure meaningful and timely input by state and 
local officials in developing regulatory policies that may have 
``substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.''
---------------------------------------------------------------------------

    \13\ 64 FR 43255 (Aug. 10, 1999).
    \14\ 74 FR 24693 (May 22, 2009).
---------------------------------------------------------------------------

    The proposed rule would not have substantial direct effects on the 
States, the relationship between the national government and the 
States, or the distribution of power and responsibilities among the 
various levels of government. The HMTA contains an express preemption 
provision at 49 U.S.C. 5125(a) that preempts State, local, and Tribal 
requirements if: (1) compliance with such requirement makes compliance 
with the DOT regulations issued under the authority of the HMTA not 
possible; or (2) compliance with such requirement is an obstacle to 
carrying out a regulation prescribed under the authority of the HMTA. 
The HMTA also contains an express preemption provision at 49 U.S.C. 
5125(b) that preempts State, local, and Tribal requirements on certain 
covered subjects, unless the non-Federal requirements are 
``substantively the same'' as the Federal requirements, including the 
following subjects:
    <bullet> The designation, description, and classification of 
hazardous materials.
    <bullet> The packing, repacking, handling, labeling, marking, and 
placarding of hazardous materials.
    <bullet> The preparation, execution, and use of shipping documents 
related to hazardous materials and requirements related to the number, 
contents, and placement of those documents.
    <bullet> The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material.
    <bullet> The design, manufacture, fabrication, marking, 
maintenance, recondition, repair, or testing of a packaging or 
container represented, marked, certified, or sold as qualified for use 
in transporting hazardous material.
    This proposed rule addresses covered subject items (1) and (2) and 
would preempt state, local, and tribal requirements not meeting the 
``substantively the same'' standard. Any preemption results directly 
from operation of 49 U.S.C. 5125. In addition, in this instance, the 
preemptive effect of the proposed rule is limited to the minimum level 
necessary to achieve the objectives of the HMTA under which the final 
rule is promulgated. Therefore, the consultation and funding 
requirements of Executive Order 13132 do not apply.

D. Executive Order 13175

    PHMSA analyzed this rulemaking in accordance with the principles 
and criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments'') \15\ and DOT Order 
5301.1A (``Department of Transportation Tribal Consultation Policy and 
Procedures''). Executive Order 13175 and DOT Order 5301.1A require DOT 
Operating Administrations to assure meaningful and timely input from 
Native American tribal government representatives in developing rules 
that significantly or uniquely affect tribal communities by imposing 
``substantial direct compliance costs'' or ``substantial direct 
effects'' on such communities, or the relationship and distribution of 
power between the Federal Government and Native American Tribes.
---------------------------------------------------------------------------

    \15\ 65 FR 67249 (Nov. 9, 2000).
---------------------------------------------------------------------------

    PHMSA assessed the impact of the rulemaking and determined that it 
would not significantly or uniquely affect Tribal communities or Native 
American Tribal governments. The changes to the hazardous materials 
program procedures and HMR proposed in this NPRM would have broad, 
national scope. PHMSA does not expect this rulemaking would 
significantly or uniquely affect Tribal communities,

[[Page 83524]]

impose substantial compliance costs on Native American Tribal 
governments, or mandate Tribal action. And because PHMSA expects the 
rulemaking would not adversely affect the safe transportation of 
hazardous materials generally, PHMSA does not expect it would entail 
disproportionately high adverse risks for tribal communities. For these 
reasons, the funding and consultation requirements of Executive Order 
13175 and DOT Order 5301.1A apply. However, PHMSA solicits comment from 
Native American tribal governments and communities on potential impacts 
of the proposed rulemaking.

E. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
agencies to consider whether a rulemaking would have a ``significant 
economic impact on a substantial number of small entities'' to include 
small businesses; not-for-profit organizations that are independently 
owned and operated and are not dominant in their fields; and 
governmental jurisdictions with populations under 50,000. The 
Regulatory Flexibility Act directs agencies to establish exceptions and 
differing compliance standards for small businesses, where possible to 
do so and still meet the objectives of applicable regulatory statutes. 
Executive Order 13272 (``Proper Consideration of Small Entities in 
Agency Rulemaking'') \16\ requires agencies to establish procedures and 
policies to promote compliance with the Regulatory Flexibility Act and 
to ``thoroughly review draft rules to assess and take appropriate 
account of the potential impact'' of the rules on small businesses, 
governmental jurisdictions, and small organizations. The DOT posts its 
implementing guidance on a dedicated web page.\17\
---------------------------------------------------------------------------

    \16\ 67 FR 53461 (Aug. 16, 2002).
    \17\ DOT, ``Rulemaking Requirements Related to Small Entities,'' 
https://www.transportation.gov/regulations/rulemaking-requirements-concerning-small-entities (last accessed June 17, 2021).
---------------------------------------------------------------------------

    This proposed rule has been developed in accordance with Executive 
Order 13272 and DOT's procedures and policies to promote compliance 
with the Regulatory Flexibility Act to ensure that potential impacts on 
small entities are considered properly. As explained above, this 
proposed rule facilitates the transportation of hazardous materials by 
streamlining the regulatory requirements for energetics manufacturers 
and shippers while maintaining the current level of safety for 
transportation of these items. Specifically, it proposes to amend the 
classification and approval process of certain low-hazard Class 1 
explosive materials (i.e., fireworks) and clarify classification 
eligibility for ammunition with inert projectile that has a pyrotechnic 
coating (i.e., tracers). Finally, this rulemaking proposes to require 
use of the PHMSA portal, an online application, as the sole method to 
submit explosives approval applications.
    Therefore, PHMSA expects that these amendments will not, if 
adopted, have a significant economic impact on a substantial number of 
small entities. However, PHMSA solicits comments on the anticipated 
economic impacts to small entities.

F. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), 
no person is required to respond to any information collection unless 
it has been approved by OMB and displays a valid OMB control number. 
Pursuant to 44 U.S.C. 3506(c)(2)(B) and 5 CFR 1320.8(d), PHMSA must 
provide interested members of the public and affected agencies an 
opportunity to comment on information and recordkeeping requests.
    PHMSA has analyzed this NPRM in accordance with the Paperwork 
Reduction Act. PHMSA currently accounts for information collection and 
recordkeeping burdens under OMB Control Number 2137-0057 ``Approvals 
for Hazardous Materials.'' In this NPRM, PHMSA proposes to revise Sec.  
173.64 applicable to low hazard fireworks that may impact the burden 
accounted for in OMB Control Number 2137-0057. The proposed addition in 
Sec.  173.64 would require manufacturers to provide information in 
association with pursuing allowance for the self-certification of 
certain ground and novelty device fireworks as low hazard fireworks for 
purposes of transportation. PHMSA analyzed this proposal and expects 
the impact to be negligible as the information is the same information 
currently required by the HMR, just in a different format.
    PHMSA specifically requests comments on the information collection 
and recordkeeping burdens associated with developing, implementing, and 
maintaining these proposed requirements. Address written comments to 
the DOT Docket Operations Office as identified in the ADDRESSES section 
of this rulemaking. Comments regarding information collection burdens 
must be received prior to the close of the comment period identified in 
the DATES section of this rulemaking. In addition, you may submit 
comments specifically related to the information collection burden to 
the PHMSA Desk Officer, Office of Management and Budget, at fax number 
202-395-674. Requests for a copy of this information collection should 
be directed to Steven Andrews, Standards and Rulemaking Division (PHH-
10), Pipeline and Hazardous Materials Safety Administration, 1200 New 
Jersey Avenue SE, Washington, DC 20590-0001. If these proposed 
requirements are adopted in a final rule, PHMSA will submit the revised 
information collection and recordkeeping requirements to OMB for 
approval.

G. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et 
seq.) requires agencies to assess the effects of Federal regulatory 
actions on State, local, and Tribal Governments, and the private 
sector. For any NPRM or final rule that includes a Federal mandate that 
may result in the expenditure by State, local, or Tribal Governments, 
or by the private sector of $100 million or more in 1996 dollars in any 
given year, the agency must prepare, amongst other things, a written 
statement that qualitatively and quantitatively assesses the costs and 
benefits of the Federal mandate.
    As explained in the PRIA, available for review in the docket, this 
proposed rule does not impose unfunded mandates under the UMRA. As 
explained in the PRIA, it is not expected to result in costs of $100 
million or more in 1996 dollars to either State, local, or Tribal 
Governments, or to the private sector in any one year. Therefore, the 
analytical requirements of UMRA do not apply.

H. Draft Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA), as amended 
(42 U.S.C. 4321-4335),\18\ requires Federal agencies to consider the 
environmental impacts of their actions in the decision-making process. 
The purpose and function of NEPA is satisfied if Federal agencies have 
considered relevant environmental information, and the public has been 
informed regarding the decision-making process. Agencies must prepare 
an environmental assessment (EA) for a proposed action that is not 
likely to have significant effects or when significance is unknown, and 
prepare a FONSI if, based on the EA, the agency determines not to 
prepare an EIS because the proposed action will not

[[Page 83525]]

have significant effects. In accordance with these requirements, an 
agency's EA must discuss: (1) the need for the action; (2) the 
alternatives considered; (3) the environmental impacts of the proposed 
action and alternatives; and (4) a listing of the agencies and persons 
consulted before providing evidence for determining a FONSI. The draft 
EA (DEA) and proposed FONSI for the proposed action in this rulemaking 
are as follows. This DEA incorporates by reference the analysis 
included in the preamble text above.
---------------------------------------------------------------------------

    \18\ Also at 40 CFR parts 1501 to 1508.
---------------------------------------------------------------------------

1. Need for the Action
    The changes in the explosives approval process, especially for 
classification and approval of low hazard fireworks, are needed to 
improve efficiency and provide regulatory clarification for offerors 
and carriers.
2. Alternatives Considered
No Action Alternative
    Under the no action alternative, the current process for acquiring 
explosives approvals by hardcopy or email submission of application 
documents would continue. Additionally, stakeholders would continue to 
rely on previously issued guidance for classification and exception 
from regulation for certain low hazards fireworks. Finally, it would 
remain ambiguous whether tracer ammunition is eligible for self-
classification as a Division 1.4S explosive (i.e., the small arms 
cartridges exceptions).
Proposed Action Alternative--Explosives Approval Program and Exceptions 
for Divisions 1.3 and 1.4 Consumer Fireworks
    Under this alternative, PHMSA would implement the proposed 
amendments of this rule as fully addressed in the preamble and 
regulatory text sections of this NPRM. However, a concise summary of 
the proposed amendments include the following:
    (1) Establishing exceptions for ground and novelty firework 
devices.
    (2) Authorizing the self-classification of tracer ammunition.
    (3) Requiring electronic submittal of explosives approval 
applications to include reference to the PHMSA portal, and to authorize 
electronic submittal for all required approvals.
3. Environmental Impacts of Proposed Action and Alternatives
No Action Alternative
    PHMSA expects the no action alternative to have no new impact on 
the environment as the status quo would remain in place. Explosives 
approval applications, including those for fireworks, would continue to 
be processed using all authorized filing formats currently in place, 
and manufacturers would continue to work within the scope of guidance 
issued by PHMSA for exceptions from regulation for low hazard 
fireworks. Additionally, classification of tracer ammunition as a 
Division 1.4S would remain the same but clarity on whether a 
manufacturer could self-classify would remain uncodified.
Proposed Action Alternative--Explosives Approval Program and Exceptions 
for Divisions 1.3 and 1.4 Consumer Fireworks
    Under this alternative, PHMSA would implement the proposed 
amendments of this rule as fully addressed in the preamble and 
regulatory text sections of this NPRM. The proposed amended regulatory 
text would allow for a streamlining of procedural requirements for the 
transportation of low hazard ground and novelty firework devices. 
Specifically, PHMSA would allow an automated process within the PHMSA 
portal for self-certification, review of the information provided, and 
issuance of a certificate with a unique identification (i.e., FW 
number). This process would eliminate the need for firsthand review by 
PHMSA personnel when compliance is certified by the applicant. The 
devices would still be subject to the same substantive testing and 
materials requirements, including construction, formulation, and 
packaging. Similarly, this NPRM proposes to clarify and codify existing 
guidance that self-certification is authorized for inert projectile 
cartridges coated with tracer composition and may be self-classified as 
a Division 1.4S material provided all other criteria outlined in Sec.  
173.56(h) are met. Although the proposal would reduce the hours PHMSA 
personnel spend reviewing documents, the automated process is designed 
to similarly ensure compliance. Furthermore, PHMSA will maintain 
oversight of the automated process for low hazard fireworks through 
PHMSA's QA/QC review program.
    PHMSA also notes the difficulty in quantifying any environmental 
impact of requiring electronic processing of information; codifying 
approval and exception requirements for low hazard fireworks; and 
clarifying authorized self-classification of tracer ammunition. The 
changes proposed in this notice do not impact whether or not explosives 
are manufactured and transported, but rather how explosives approval 
applications are processed and how certain explosives may be 
classified. The process is already occurring and the changes proposed 
would primarily be about transitioning to an electronic format. For the 
above reasons, PHMSA expects the proposed action alternative to have no 
impact on the human environment, including public safety.
4. Agencies and Persons Consulted
    PHMSA coordinated with the Federal Aviation Administration, the 
Federal Motor Carrier Safety Administration, the Federal Railroad 
Administration, and the U.S. Coast Guard in the development of this 
proposed rule.
5. Environmental Justice
    Executive Order 12898 (``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations'') \19\ 
directs Federal agencies to take appropriate and necessary steps to 
identify and address disproportionately high and adverse effects of 
Federal actions on the health or environment of minority and low-income 
populations to the greatest extent practicable and permitted by law. 
DOT Order 5610.2C (``Department of Transportation Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations'') establishes departmental procedures for effectuating 
Executive Order 12898 promoting the principles of environmental justice 
through full consideration of environmental justice principles 
throughout planning and decision-making processes in the development of 
programs, policies, and activities--including PHMSA rulemaking.
---------------------------------------------------------------------------

    \19\ 59 FR 7629 (Feb. 16, 1994).
---------------------------------------------------------------------------

    PHMSA has evaluated this proposed rule under Executive Order 12898 
and DOT Order 5610.2C and preliminarily determined that it would not 
cause disproportionately high and adverse human health and 
environmental effects on minority and low-income populations. The 
rulemaking is neither directed toward a particular population, region, 
or community, nor is it expected to adversely impact any particular 
population, region, or community. And insofar as the rulemaking would 
not adversely affect the safe transportation of hazardous materials 
generally, the proposed revisions would not entail disproportionately 
high adverse risks for minority and low-income populations. This 
preliminary determination is consistent with the recent Executive Order 
14096 (``Revitalizing Our Nation's Commitment to Environmental Justice 
for All''),\20\ by achieving several goals,

[[Page 83526]]

including continuing to deepen the Administration's whole of government 
approach to environmental justice and to better protect overburdened 
communities from pollution and environmental harms.
---------------------------------------------------------------------------

    \20\ 88 FR 25251 (Apr. 26, 2023).
---------------------------------------------------------------------------

6. Proposed Finding of No Significant Impact
    As discussed in this DEA as well as Section II of the notice, the 
proposed actions of this rulemaking would introduce efficiencies to the 
explosives approval process and the way certain low hazard Class 1 
explosive materials are authorized for transportation, and provide 
clarity on whether tracer ammunition for small arms cartridges may be 
classed as Division 1.4S material without the explosives approval 
process. The proposed actions would not cause environmental impact 
because the changes proposed are procedural and not substantive, and no 
reduction in compliance with HMR requirements are anticipated. There 
may be a negligible impact by changing from paper documents to reliance 
on electronic systems. Nothing is different between the approval and 
transport of explosives and low hazard fireworks under the current 
system and under the proposed system other than how applications are 
processed. Similarly, nothing is different between the current 
classification of tracer ammunition and the proposed action except how 
classification is determined (i.e., either by formalized approval 
classification or by self-classification). Therefore, PHMSA proposes 
that, if adopted, this rulemaking will result in no significant impact 
to the human environment. PHMSA welcomes feedback related to 
environmental impacts that may result if the proposed requirements are 
adopted, as well possible alternatives and their environmental impacts.

I. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform any amendments to the hazardous materials 
program procedures and the HMR considered in this rulemaking. DOT posts 
these comments, without edit, including any personal information the 
commenter provides, to https://www.regulations.gov, as described in the 
system of records notice (DOT/ALL-14 FDMS). DOT's complete Privacy Act 
Statement is in the Federal Register,\21\ or on DOT's website at 
https://www.dot.gov/privacy.
---------------------------------------------------------------------------

    \21\ 65 FR 19477 (Apr. 11, 2000).
---------------------------------------------------------------------------

J. Executive Order 13609 and International Trade Analysis

    Executive Order 13609 (``Promoting International Regulatory 
Cooperation'') \22\ requires that agencies consider whether the impacts 
associated with significant variations between domestic and 
international regulatory approaches are unnecessary or may impair the 
ability of American business to export and compete internationally. In 
meeting shared challenges involving health, safety, labor, security, 
environmental, and other issues, international regulatory cooperation 
can identify approaches that are at least as protective as those that 
are or would be adopted in the absence of such cooperation. 
International regulatory cooperation can also reduce, eliminate, or 
prevent unnecessary differences in regulatory requirements.
---------------------------------------------------------------------------

    \22\ 77 FR 26413 (May 4, 2012).
---------------------------------------------------------------------------

    Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as 
amended by the Uruguay Round Agreements Act (Pub. L. 103-465), 
prohibits Federal agencies from establishing any standards or engaging 
in related activities that create unnecessary obstacles to the foreign 
commerce of the United States. Pursuant to the Trade Agreements Act, 
the establishment of standards is not considered an unnecessary 
obstacle to the foreign commerce of the United States, so long as the 
standards have a legitimate domestic objective, such as providing for 
safety, and do not operate to exclude imports that meet this objective. 
The statute also requires consideration of international standards and, 
where appropriate, that they be the basis for U.S. standards.
    In developing requirements to allow manufacturers to self-certify 
certain fireworks as meeting criteria for transportation as low hazard 
fireworks in place of acquiring an explosives approval for 
transportation, PHMSA has made assurances that the process facilitates 
international transport. PHMSA realizes the absence of an approval and 
the associated approval number provides for domestic exception from 
regulation of certain low hazard novelty fireworks, and it has assessed 
the effects of the proposed rule to ensure it does not cause 
unnecessary obstacles to foreign trade. In fact, the proposed rule is 
expected to facilitate international trade by harmonizing U.S. and 
international requirements for the transportation of hazardous 
materials. The rule is expected to reduce regulatory burdens and 
minimize delays arising from having to comply with divergent regulatory 
requirements. This rulemaking is consistent with Executive Order 13609 
and PHMSA's obligations under the Trade Agreements Act, as amended.

K. National Technology Transfer and Advancement Act

    The National Technology Transfer and Advancement Act of 1995 (15 
U.S.C. 272 note) directs Federal agencies to use voluntary consensus 
standards in their regulatory activities unless doing so would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., specification of 
materials, test methods, or performance requirements) developed or 
adopted by voluntary consensus standard bodies. This NPRM involves 
voluntary consensus standards, which are discussed in Section I of this 
NPRM.

L. Severability

    The purpose of this proposed rule is to operate holistically in 
addressing a panoply of issues related to safety hazards; the 
classification and approval process for certain low-hazard fireworks; 
permitting small arms cartridges to include tracer ammunition; and 
allowing for voluntary termination of an explosive approval by the 
approval holder. However, PHMSA recognizes that certain provisions 
focus on unique topics. Therefore, PHMSA preliminarily finds that the 
various provisions of this proposed rule are severable and able to 
function independently if severed from each other. Thus, in the event a 
court were to invalidate one or more of this proposed rule's unique 
provisions, the remaining provisions should stand and continue in 
effect. PHMSA seeks comment on which portions of this proposed rule 
should or should not be severable.

M. Cybersecurity and Executive Order 14028

    Executive Order 14028 (``Improving the Nation's Cybersecurity'') 
\23\ expressed the Biden-Harris Administration policy that ``the 
prevention, detection, assessment, and remediation of cyber incidents 
is a top priority and essential to national and economic security.'' 
Executive Order 14028 directed the Federal Government to improve its 
efforts to identify, deter, and respond to ``persistent and 
increasingly sophisticated malicious cyber campaigns.'' PHMSA has 
considered the effects of this NPRM and

[[Page 83527]]

determined its regulatory amendments will not materially affect the 
cybersecurity risk profile for the classification and approval process 
for certain low-hazard fireworks, for small arms cartridges to include 
tracer ammunition, and the transportation of hazardous materials.
---------------------------------------------------------------------------

    \23\ 86 FR 26633 (May 17, 2021).
---------------------------------------------------------------------------

List of Subjects

49 CFR Part 107

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

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste, 
Imports, Incorporation by reference, Reporting and recordkeeping 
requirements.

49 CFR Part 173

    Hazardous materials transportation, Incorporation by reference, 
Packaging and containers, Radioactive materials, Reporting and 
recordkeeping requirements.

    In consideration of the foregoing, PHMSA proposes to amend 49 CFR 
chapter I as follows:

PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES

0
1. The authority citation for part 107 continues to read as follows:

    Authority:  49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 Section 
4; Pub. L. 104-121 Sections 212-213; Pub. L. 104-134 Section 31001; 
Pub. L. 114-74 Section 701 (28 U.S.C. 2461 note); 49 CFR 1.81 and 
1.97; 33 U.S.C. 1321.

0
2. In Sec.  107.705, revise paragraph (a)(1) to read as follows:


Sec.  107.705   Registrations, reports, and applications for approval.

    (a) * * *
    (1) Filings. (i) Submission methods. The registration, report, or 
application may be filed with the Associate Administrator for Hazardous 
Materials Safety, Pipeline and Hazardous Materials Safety 
Administration, U.S. Department of Transportation, East Building, 1200 
New Jersey Avenue SE, Washington, DC 20590-0001. Applications may be 
filed using the PHMSA portal at: https://portal.phmsa.dot.gov/ or 
alternatively, may be filed with any attached supporting documentation 
in an appropriate format by facsimile (fax) to: (202) 366-3753 or (202) 
366-3308, or by electronic mail (email) to: <a href="/cdn-cgi/l/email-protection#70110000021f06111c0330141f045e171f06"><span class="__cf_email__" data-cfemail="d4b5a4a4a6bba2b5b8a794b0bba0fab3bba2">[email protected]</span></a>.
    (ii) Explosive approval applications. Filing of explosives approval 
and fireworks approval applications as well as certifications of low 
hazard fireworks must be submitted, and will only be accepted, using 
the PHMSA portal.
* * * * *
0
3. In Sec.  107.713, revise paragraph (c) introductory text and add 
paragraph (e) to read as follows:


Sec.  107.713   Approval modification, suspension or termination.

* * * * *
    (c) Except as provided in paragraphs (d) and (e) of this section, 
before an approval is modified, suspended, or terminated, the Associate 
Administrator notifies the holder in writing of the proposed action and 
the reasons for it, and provides an opportunity to show cause why the 
proposed action should not be taken.
* * * * *
    (e) The Associate Administrator may terminate an approval at the 
request of the approval holder based on the holder's determination that 
it is no longer needed. The approval holder must submit the request in 
writing to the Associate Administrator using the PHMSA portal at: 
https://portal.phmsa.dot.gov/.

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

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

    Authority:  49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section 
4; Pub. L. 104-134, section 31001; Pub. L. 114-74 section 701 (28 
U.S.C. 2461 note); 49 CFR 1.81 and 1.97.
0
5. In Sec.  171.8, add a definition for ``FW number'' in appropriate 
alphabetical sequence to read as follows:


Sec.  171.8   Definitions and abbreviations.

* * * * *
    FW number means a number preceded by the prefix ``FW'', assigned by 
PHMSA to a Division 1.4G Consumer firework device that has been 
certified under the provisions of Sec.  173.64 of this subchapter.
* * * * *

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

0
6. The authority citation for part 173 continues to read as follows:

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

0
7. In Sec.  173.56, revise paragraph (h)(3) to read as follows:


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

* * * * *
    (h) * * *
    (3) Ammunition (including tracer ammunition) with inert projectile, 
or blank ammunition; and
* * * * *
0
8. In Sec.  173.59, add a definition for ``Low hazard firework'' in 
alphabetical order to read as follows:


Sec.  173.59   Description of terms for explosives.

* * * * *
    Low hazard firework. As listed in Sec.  173.64 of this subchapter, 
are pyrotechnic articles of certain chemical composition, design, and 
packaging that are not designed to leave ground level, contain no 
aerial components, present a low explosive hazard during 
transportation, and comply with any limits and requirements found 
therein. Low hazard fireworks include ground and novelty devices.
* * * * *
0
9. Revise Sec.  173.64 to read as follows:


Sec.  173.64   Exceptions for Division 1.3 and 1.4 fireworks.

    (a) Classification and approval. Notwithstanding the requirements 
of Sec.  173.56(b), Division 1.3 and 1.4 fireworks may be classed and 
approved by the Associate Administrator without prior examination and 
offered for transportation if the conditions of this paragraph (a) are 
met (see Sec.  173.65 for an alternate method to approve Division 1.4G 
consumer fireworks using a DOT-approved Fireworks Certification 
Agency):
    (1) Fireworks must be manufactured in accordance with the 
applicable requirements in APA 87-1A, 87-1B, and 87-1C (IBR, see Sec.  
171.7 of this subchapter).
    (2) The firework device must pass a thermal stability test 
conducted by a third-party laboratory or the manufacturer. The test 
must be performed by maintaining the device, or a representative 
prototype of a large device such as a display shell, at a temperature 
of 75 [deg]C (167 [deg]F) for 48 consecutive hours. When a device 
contains more than one component, those components that could be in 
physical contact with each other in the finished device must be placed 
in contact with each other during the thermal stability test.
    (3) The manufacturer applies in writing to the Associate 
Administrator following the applicable requirements in APA 87-1A, 87-
1B, and 87-1C and is notified in writing by the Associate Administrator 
that the fireworks have

[[Page 83528]]

been classed, approved, and assigned an EX number. Each application 
must be complete and include all relevant background data and copies of 
all applicable drawings, test results, and any other pertinent 
information on each device for which approval is being requested. The 
manufacturer must sign the application and certify that the device for 
which approval is requested conforms to the appropriate APA Standard, 
that the descriptions and technical information contained in the 
application are complete and accurate, and, with respect to APA 87-1A, 
that no duplicate application has been submitted to a fireworks 
certification agency. If the application is denied, the manufacturer 
will be notified in writing of the reasons for the denial. The 
Associate Administrator may require that the fireworks be examined by 
an agency listed in Sec.  173.56(b)(1) of this part.
    (b) Additional exceptions for low hazard Division 1.4 consumer 
fireworks. Low hazard fireworks are pyrotechnic articles of certain 
chemical composition, design, and packaging such that they present a 
low explosive hazard during transportation. Low hazard ground device 
fireworks listed in the table to paragraph (b)(2) of this section and 
meeting the specified conditions and limitations are eligible for self-
classification and transport as UN0336, Fireworks, Division 1.4G. 
Further, certain low hazard novelty fireworks listed in the table to 
paragraph (b)(3) of this section meeting the specified conditions and 
limitations may be excepted from the requirements of this subchapter as 
a Class 1 explosive material. Low hazard fireworks are not subject to 
the explosives approval requirements of Sec.  173.56 or the DOT-
approved Fireworks Certification Agency requirements of Sec.  173.65.
    (1) General requirements. No person may manufacture and offer for 
transport a low hazard firework unless compliance with requirements of 
this paragraph (b) has been certified with the Associate Administrator. 
No person may accept for transport a low hazard firework that has not 
been certified as specified in this section. If the person certifying 
compliance is not a resident of the United States, the person must 
designate an agent for service in accordance with Sec.  105.40 of this 
chapter. Additionally, low hazard fireworks:
    (i) Must successfully pass a thermal stability test as specified in 
paragraph (a)(2) of this section;
    (ii) May not be transported as a component part for another 
firework or explosive; and
    (iii) Must be marked with an FW number issued by the Associate 
Administrator. If the firework is too small for the marking, the outer 
package of the fireworks must be marked with the FW number.
    (2) Requirements specific to ground firework devices. (i) Ground 
devices must use chemicals in conformance with the permitted and 
restricted chemical list in APA 87-1A, Appendix 1.
    (ii) When permitted, all reports are limited to 50 mg of 
composition per report.
    (iii) Ground devices must be initiated by a fuse; however, a fuse 
is not required for the following types: flitter sparklers, wire or 
dipped sparklers, fountain (nitrocellulose), and snakes (glow worms).
    (iv) Authorized ground devices, and their descriptions, 
specifications, and special conditions for transport are set forth as 
follows:

                    Table 1 to Paragraph (b)(2)--Authorized Ground Devices and Specifications
----------------------------------------------------------------------------------------------------------------
                 Type                        Description             Specification          Special conditions
----------------------------------------------------------------------------------------------------------------
Chaser...............................  Consists of a paper or   20 grams total of        None.
                                        cardboard tube, which    chemical composition,
                                        vents out its fuse       with multiple reports
                                        hole.                    permitted (each report
                                                                 limited to 50
                                                                 milligrams).
Crackling Ball.......................  Consists of a spherical  20 total grams of        Inner packaging cannot
                                        ball that contains       chemical composition,    exceed 72 grams of
                                        small granules of        with no reports          composition.
                                        chemical composition     permitted.
                                        that upon ignition
                                        produce sparks and/or
                                        a crackling effect.
Crackling Strip......................  Consists of small        20 total grams of        Inner packaging cannot
                                        granules of chemical     chemical composition,    exceed 72 grams of
                                        composition adhered to   with no reports          composition.
                                        and encased in a paper   permitted.
                                        or cardboard wrapping
                                        that upon ignition
                                        produce sparks and/or
                                        a crackling effect.
Crackling Tube.......................  Consists of a tube that  20 total grams of        Inner packaging cannot
                                        contains small           chemical composition,    exceed 72 grams of
                                        granules of chemical     with no reports          composition.
                                        composition that upon    permitted.
                                        ignition produce
                                        sparks and/or a
                                        crackling effect.
Firecracker..........................  Consists of a small      50 milligrams of         Multiple firecrackers
                                        paper-wrapped or         chemical composition     can be fused together
                                        cardboard tube that      per firecracker.         to form a string.
                                        produces a single                                 There is no limit on
                                        report.                                           number of firecrackers
                                                                                          in a string.
Flasher/Strobe.......................  Consists of a small      5 total grams of         Inner packaging cannot
                                        paper-wrapped or         chemical composition,    exceed 60 grams of
                                        cardboard tube that      with no reports          composition.
                                        produces a crackling/    permitted.
                                        flashing/strobe light
                                        effect.
Flitter Sparkler.....................  Consists of a paper or   25 total grams of        None.
                                        cardboard tube           chemical composition,
                                        attached to a stick or   with no reports
                                        wire. Upon ignition,     permitted.
                                        the device produces a   Formulations containing
                                        shower of sparks, a      chlorates are limited
                                        colored flame, and/or    to 4 grams with no
                                        a crackling effect.      more than 15 percent
                                                                 of the formulation
                                                                 being chlorates.
Fountain (Cone)......................  Consists of a paper or   50 total grams of        None.
                                        cardboard tube that      chemical composition,
                                        upon ignition produces   with no reports
                                        a shower consisting of   permitted.
                                        any combination of
                                        colored sparks, color
                                        flame, crackle, smoke,
                                        whistle, or micro star
                                        effects.

[[Page 83529]]

 
Fountain (Cylindrical)...............  Consists of a paper or   100 total grams of       None.
                                        cardboard tube that      chemical composition,
                                        upon ignition produces   with no reports
                                        a shower consisting of   permitted.
                                        any combination of
                                        colored sparks, color
                                        flame, crackle, smoke,
                                        whistle, or micro star
                                        effects.
Fountain (Nitrocellulose)............  Consists of a cone or    15 total grams of        None.
                                        tube device that         chemical composition,
                                        produces a shower of     with no reports
                                        small sparks, color,     permitted.
                                        and flame as its
                                        primary effect using
                                        nitrocellulose as the
                                        major chemical
                                        component.
Ground Spinner.......................  Consists of a paper or   20 total grams of        Multiple ground
                                        cardboard tube that      chemical composition,    spinners can be fused
                                        upon ignition emits a    with reports permitted   together to form a
                                        shower of sparks that    (each report limited     string. Strings are
                                        vent out of an orifice   to 50 milligrams).       limited to 20 grams of
                                        causing the device to                             total composition.
                                        spin rapidly on the
                                        ground.
Illuminating Torch...................  Consists of a paper or   100 total grams of       None.
                                        cardboard tube that      chemical composition,
                                        upon ignition, emits a   with no reports
                                        colored flame with or    permitted.
                                        without crackles or
                                        sparks.
Smoke................................  Consists of a paper or   100 total grams of       Multiple smoke devices
                                        cardboard tube that      chemical composition.    can be fused together
                                        upon ignition emits      All mixtures             to form a string.
                                        smoke as the primary     containing a chlorate    Strings are limited to
                                        effect.                  must contain an equal    100 grams of total
                                                                 amount or greater        composition.
                                                                 amount of a carbonate
                                                                 or bicarbonate (e.g.,
                                                                 calcium carbonate,
                                                                 sodium bicarbonate).
Snake................................  Consists of pressed      20 total grams of        None.
                                        pellet of pyrotechnic    chemical composition,
                                        composition that upon    with no reports. Only
                                        ignition produce a       formulations of
                                        snake-like ash that      nitrated asphalt,
                                        expands in length as     asphaltum, bitumen,
                                        the composition is       pitch, and/or tar with
                                        consumed.                an oxidizer (with or
                                                                 without a binder) are
                                                                 permitted.
Specialty Device.....................  Consists of a paper or   20 total grams of        None.
                                        cardboard tube(s),       chemical composition,
                                        e.g., in the shape of    with reports permitted
                                        an animal or a small     (each report limited
                                        vehicle, that produces   to 50 milligrams).
                                        multiple effects.       No tube can contain
                                                                 more than 2 grams of
                                                                 composition; tubes
                                                                 cannot contain aerial
                                                                 components or internal
                                                                 shells.
Wheel................................  Consists of a paper or   200 total grams of       None.
                                        cardboard tube(s)        chemical composition,
                                        placed on the ground     with no reports.
                                        or attached to a post,  No tube can contain
                                        by means of a nail,      more than 60 total
                                        spike or string. Upon    grams of composition,
                                        ignition the wheel       which includes a 20
                                        rotates, producing a     gram propellant limit
                                        shower of sparks,        per tube.
                                        color, crackling,       Tubes cannot contain
                                        flame, or whistle        aerial components.
                                        effects.
                                                                Handles are not
                                                                 permitted.
Wire Sparkler or Dipped Stick........  Consists of a metal      100 total grams of       Composition weight per
                                        wire or wood dowel       chemical composition,    inner packaging cannot
                                        coated with a chemical   with no reports          exceed 120 grams.
                                        composition. Upon        permitted.
                                        ignition, the device    Formulations containing
                                        produces a shower of     chlorates are limited
                                        sparks, a colored        to 4 grams with no
                                        flame, and/or a          more than 15 percent
                                        crackling effect.        of the formulations
                                                                 being chlorates.
----------------------------------------------------------------------------------------------------------------

    (3) Requirements specific to novelty firework devices. Except for 
transportation by air, novelty fireworks conforming to the requirements 
of this paragraph (b)(3) are not subject to this subchapter. For air 
transportation, novelty devices must be transported as required by this 
subchapter for ``UN3178, Flammable solid, inorganic, n.o.s. 
(Novelties), 4.1, PG II''.
    (i) Novelty devices must use chemicals in conformance with the 
permitted and restricted chemical list in APA Standard 87-1A, Appendix 
1 (IBR, see Sec.  171.7 of this subchapter).
    (ii) Inner packagings of novelty devices must be packaged in strong 
outer packagings. The packages must conform to the requirements of 
Sec.  173.24. The maximum gross weight of a completed package may not 
exceed 30 kg (66 pounds).
    (iii) Each outer package, and overpack if used, containing novelty 
devices must be plainly marked ``NOVELTIES, IN CONFORMANCE WITH Sec.  
173.64, NOT REGULATED, EXCEPT WHEN TRANSPORTED BY AIR''.
    (iv) Authorized novelty devices, and their descriptions, 
specifications, and special conditions for transport are set forth as 
follows:

[[Page 83530]]



                   Table 2 to Paragraph (b)(3)--Authorized Novelty Devices and Specifications
----------------------------------------------------------------------------------------------------------------
                 Type                        Description             Specifications         Special conditions
----------------------------------------------------------------------------------------------------------------
Booby Trap/Pull Apart................  Is a device that is      0.016 total grams of     Inner packages must not
                                        actuated by means of     chemical composition,    contain more than 12
                                        friction. Pulling a      which is limited to      devices.
                                        string or strings        barium, potassium, and/
                                        apart activate the       or sodium chlorate
                                        device producing a       with red phosphorus.
                                        noise effect.
Novelty Flitter Sparkler.............  Consists of a paper or   5 total grams of         .......................
                                        cardboard tube           chemical composition,
                                        attached to a stick or   with no reports
                                        wire. Upon ignition,     permitted.
                                        the device produces a    Formulations
                                        shower of sparks, a      containing chlorates
                                        colored flame, and/or    are limited to 4 grams
                                        a crackling effect.      with no more than 15
                                                                 percent of the
                                                                 formulation being
                                                                 chlorates.
Party Poppers........................  Is a device that is      0.016 total grams of     Inner packages must not
                                        actuated by means of     chemical composition,    contain more than 72
                                        friction. Pulling a      which is limited to      devices.
                                        string or trigger        barium, potassium, and/
                                        activates the device     or sodium chlorate
                                        producing a noise        with red phosphorus.
                                        effect and releasing
                                        paper streamers or
                                        confetti. Common
                                        examples resemble
                                        champagne bottles and
                                        toy pistols.
Novelty Snakes and Glow-Worms........  Consists of pressed      2 total grams of         Inner packaging must
                                        pellet of pyrotechnic    chemical composition.    not contain more than
                                        composition that upon    Only formulations of     25 devices.
                                        ignition, produce a      nitrated asphalt,
                                        snake-like ash that      asphaltum, bitumen,
                                        expands in length as     pitch, and/or tar with
                                        the composition is       an oxidizer (with or
                                        consumed.                without a binder) are
                                                                 permitted.
Snappers.............................  Consists of small,       0.001 total grams of     Inner packages must not
                                        paper-wrapped items.     silver fulminate         contain more than 50
                                        When dropped, the        coated on small bits     devices with sawdust
                                        device activates,        of sand or gravel.       or other impact
                                        producing a noise                                 absorbing materials.
                                        effect.
Novelty Wire Sparkler or Novelty       Consists of a metal      25 total grams of        Inner packages must not
 Dipped Stick.                          wire or wood dowel       chemical composition,    contain more than 8
                                        coated with a chemical   with no reports          devices.
                                        composition. Upon        permitted.
                                        ignition, the device     Formulations
                                        produces a shower of     containing
                                        sparks, a colored        perchlorates are
                                        flame, and/or a          limited to 5 grams.
                                        crackling effect.        Formulations
                                                                 containing chlorates
                                                                 are limited to 4 grams
                                                                 with no more than 15
                                                                 percent of the
                                                                 formulations being
                                                                 chlorates.
Novelty Smoke Device.................  Consists of a paper or   5 total grams of         Inner packages must not
                                        cardboard tube that      chemical composition,    contain more than 72
                                        upon ignition, emits     with no reports          devices.
                                        smoke as the only        permitted. All
                                        effect.                  mixtures containing a
                                                                 chlorate must contain
                                                                 an equal amount or
                                                                 greater amount of a
                                                                 carbonate or
                                                                 bicarbonate (e.g.,
                                                                 calcium carbonate,
                                                                 sodium bicarbonate).
----------------------------------------------------------------------------------------------------------------

    (4) Recordkeeping requirements. In addition to the certification of 
each low hazard firework in accordance with this section, the 
manufacturer must maintain a record of the documents demonstrating 
compliance with this section. Each record must clearly provide the FW 
number assigned to the device certified. The record must contain the 
following information at minimum: FW certification document, category 
of device, drawing, chemical composition list, gram quantities, and if 
applicable, U.S. agent of service information. The record must be 
accessible at or through the principal place of business for five years 
after the device is manufactured and must be made available, upon 
request, to an authorized official of a Federal, State, or local 
government agency at a reasonable time and location, not to exceed five 
(5) business days.

    Issued in Washington, DC, on November 17, 2023, under authority 
delegated in 49 CFR 1.97.
William S. Schoonover,
Associate Administrator for Hazardous Materials Safety, Pipeline and 
Hazardous Materials Safety Administration.
[FR Doc. 2023-25887 Filed 11-29-23; 8:45 am]
BILLING CODE 4910-60-P


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