or Trying to Make Sense Out of the Regulations Contained in the ATF Orange Book is oftentimes not possible

Why Bother Calling It Fireworks? or, Trying to Make Sense Out of the Regulations Contained in the ATF ‘Orange book’ Is Oftentimes Not Possible.

The fireworks industry is given short shrift when government officials arbitrarily lump a family entertainment industry together with traditional manufacturers and users of explosives. Without any reasonable explanation and without proper cause, law enforcement officials currently interpret the storage standards that properly apply to high explosives broadly enough to encompass display fireworks, creating a hardship for those businesses that may store display fireworks in excess of 10,000 lbs. net weight.

Ironically, the current ATF ‘Orange book’ (2000, revised April 1, 2003) is rife with examples that convincingly establish that display fireworks and high explosives are considered by the ATF to be separate and distinct. The net result is that the agency’s reliance upon regulations relating to high explosives for purposes of the storage of display firework is improper and efforts to rectify this situation are appropriate.

Reference to Subpart B – Definitions, § 55.11, Meaning of Terms, contains, in order of appearance, separate definitions for the following terms: (1) display fireworks, (2) explosive actuated device, (3) explosive materials, (4) explosives, (5) fireworks, (6) fireworks mixing building, (7) fireworks nonprocess building, (8) fireworks plant, (9) fireworks plant warehouse, (10) fireworks process building, and (11) fireworks shipping building.

As you can readily see for yourself, the government has separately defined ‘explosives’ and ‘fireworks’. Importantly, the express purpose of Subpart B is to set forth the meaning of the terms used throughout Part 55- Commerce in Explosives, presumably to provide the reader with a proper understanding, and prior notice, of the scope the regulations.

Subpart K – Storage, § 55.202, Classes of Explosive Materials, further refines the definition for explosives by splitting this term into three separate defined classes of explosive materials; namely, ‘high explosives’, ‘low explosives’ and ‘blasting agents’. Here, display fireworks (excepting bulk salutes) are identified as an explosive, albeit a low explosive. Thus, a reasonable person should be able to conclude that the government considers display fireworks to be low explosives for all purposes.

With respect to storage, the government conveniently provides six tables of distances that are separately labeled, in pertinent part, as: (1) explosives materials, § 55.218; (2) low explosives, § 55.219; (3) blasting agents, § 55.220; (4) fireworks process and fireworks nonprocess buildings, § 55.222; (5) fireworks process and a place of assembly and inhabited buildings, § 55.223; and (6) storage of display fireworks (except bulk salutes) §55.224.

It is interesting to note that § 55.221, Requirements for display fireworks, pyrotechnic compositions, and explosive materials used in assembling fireworks or articles pyrotechnic, is all text (rather than a table), and, significantly, it neatly and conveniently separates the three sets of tables devoted to explosives (§.218, §.219 §.220) from the three sets of tables relating to fireworks and display fireworks (§.222, §.223 and §.442). Again, the government has drafted a regulatory scheme that seemingly recognizes a distinction between high explosives and fireworks; indeed, the ATF orange book repeatedly refer to display fireworks as low explosives.

For example, the General Questions section of the ATF orange book explicitly mentions fireworks as low explosives; item 85 poses the question of how must display fireworks be stored, and it answers that these items are considered to be low explosives. A similar response is also found in the General Information section relating to the issue of storage of fireworks; “display fireworks must be stored as low explosives…”.

Notwithstanding the clear and unambiguous language of the regulations, the table of distances has generated significant problems for all businesses that store display fireworks in excess of 10,000 lbs., net weight. Specifically, the table of distances governing the storage of display fireworks (§ 55.224) ceases to apply (above this weight) and, instead, one is expressly referred to, and required to comply with, the table of distances governing explosives (§ 55.218). This reference is illogical. We know that the ATF considers display fireworks a low explosive, and we also know that the ATF has created a table of distances specifically for low explosives. Further, the tables of distances for explosives and low explosives each provides standards for storage of up to 300,000 lbs. net weight, negating any preference of one table on the basis of weight.

In conclusion, the storage of display fireworks in excess of 10,000 lbs., net weight, should result in referring the matter to the table governing low explosives, § 55.219. The fireworks industry should bring this to the attention of the ATF for purposes of obtaining fair and logical treatment.