While an old snort may fondly remember the day when fireworks manufacturers were active in the United States, you do not have to be an old snort to understand that over-regulation has caused manufacturing activity to shift offshore, resulting in the vast majority of commercial fireworks now being produced overseas. The loss of jobs, revenues and pride is irreparable.
Other victims of the demonstrable shift in manufacturing are certain regulations that were initially intended to govern persons residing in the United States; the extraterritorial part of the regulatory equation was seemingly ignored and left undeveloped. One obvious reason is that the United States has little, if any, enforcement power outside the United States and its territories. This article is the first in a series of articles that will examine certain regulations and how current affairs have caused some of the terms and conditions to be rendered obsolete and ineffective.
For example, the regulations prescribing the manner of obtaining approval of a new explosive are expressly described in 49 CFR § 173.56- titled New explosive-definition and procedures for classification and approval; and the current terms and conditions create a conundrum for the regulatory agency. One problem confronting the government is that § 173.56 was fashioned in an era when fireworks manufacturers were common in the United States and, consequently, the regulations are rightfully intended to be enforced against persons residing in the United States, as opposed to foreigners. However, a variety of factors has caused manufacturing to shift predominately overseas, eroding the resiliency and relevancy of § 173.56, to the extent that it seeks to govern “producers” and “manufacturers”. Arguably, with fewer manufacturers located within the United States there should be a corresponding reduction in the number of explosives approvals that would issue to US residents under § 173.56 since, according to its express terms, only producers or manufacturers need apply.
More specifically, § 173.56 (a), expressly states, in full:
Definition of new explosive. For the
purposes of this subchapter a
new explosive means an explosive
produced by a person (underline added).
By its express terms, this section of § 173.56 is silent upon whether a person other than a producer (or manufacturer) should or must obtain approvals under this subchapter. See further, § 173.56, wherein the word
