Part 1 – To Whom Should PHMSA Issue EX-Numbers; and What is a New Explosive (Firework)?
Donald E. Creadore, Esq.
This article is the first in a series that will look at issues concerning the Pipeline and Hazardous Materials Safety Administration’s (PHMSA) fireworks (or ex-number) approval process. In addressing these issues the emphasis will be more on the relevant portions of the Hazardous Materials Regulations (“HMR”; 49 CFR Parts 171 to 180) and less on the current system utilized by PHMSA, which, the reader will soon see, does not mesh with the current regulations.
Asking “to whom should PHMSA be issuing fireworks approvals” is equivalent to asking: who should be applying for an Ex-Number (approval). The plain language of the regulations provides the answer – THE MANUFACTURER! However, PHMSA is in the practice of issuing EX-Numbers for fireworks not only to the manufacturer, but also to distributors, importers, display companies and others. This practice has caused many problems for PHMSA and the regulated community (not the least of which is the imposition of liabilities on the improper recipient of the approval). These problems and issues, however, will be discussed in the second article in this series.
The applicable section of the regulations is 49 C.F.R. §173.56, which provides two avenues for obtaining an approval. Paragraph (a) of this section sets out the definition of a “new explosive” with an emphasis on the person who produces the explosive, which is the manufacturer. Paragraph (b), the first avenue, provides for testing by an approved third party examining agency, which is one of two avenues available for approval of a new firework. According to this paragraph “no person may offer a new explosive for transportation unless that person has. . .” (emphasis added). It should be noted that when it comes to high explosives (explosives other than fireworks) PHMSA has determined that 49 C.F.R. §173.56(b) allows for applications only from the manufacturer. Is there any reason a different rule should apply to fireworks?
The second avenue available for the approval of a new firework is to make application under 49 C.F.R. §173.56(j). The vast majority of fireworks approvals are submitted under this paragraph. The requirements of this paragraph could not be clearer – “the manufacturer applies in writing to the Associate Administrator. . .” (49 C.F.R. §173.56(j)(3); emphasis in the original). The law cannot be clearer; the manufacturer must apply for approval of a new firework and, as a matter of law, PHMSA should only be issuing approvals to the manufacturer. As mentioned above, the practice of issuing the approvals to persons other than manufacturers creates many problems for PHMSA and the regulated entities. This deviation from the regulations, coupled with certain enforcement practices and views of what constitutes a “new firework”, may be in contravention of the Administrative Procedures Act and may result in unwarranted or unjustified infringements upon due process.
What is a new firework device (or a new explosive)? As indicated above, a “new” explosive is defined in 49 C.F.R. §173.56(a). In determining what is a “new” explosive one must first ask: Has the manufacturer ever produced this explosive or particular firework device before? If the answer is no, then the item is new and requires a new approval, or EX-Number. If the manufacturer has previously produced the device it is new only when the manufacturer has “made a change in the formulation, design or process” (49 C.F.R. §173.56(a)(2)). However, there is a second prong to this requirement that is often overlooked. In order to be considered a new firework the change that was made must “alter any of the properties of the explosive” (ibid.).
Despite the open ended and ambiguous terms of this provision, PHMSA has issued very little additional guidance. In an interpretation dated April 8, 2009, while addressing a question concerning a waste stream with some explosive content, PHMSA stated: “The term ‘formulation’ . . . applies to the entire mixture and not just the explosive components” (PHMSA Interpretation, Ref. No. 09-0013). Other examples are a change in formulation that increases the sensitivity toward initiation or energetic content (ibid). Conspicuously absent from the list of what makes a new explosive, or firework, is a change in the name. In many enforcement actions, PHMSA has asserted that a firework device is not approved if the article in question has a different product name or code or if PHMSA incorrectly issued the approval to a distributor and the manufacturer then sells the product (under a different name) to a different distributor.
Curiously, if a manufacturer produces a cake that contains 50 shots and, then, using the same formulation and process, changes the design to a 25 shot cake, has this changed the property of the firework device? Arguably, the answer is no! This type of change may not have also altered the thermal stability or sensitivity toward initiation or energetic content. The change may have resulted in a product with the same composition and general design, but with a lower net explosive mass from its big brother (the 50 shot cake). There are likely many situations in which, and without further guidance, a manufacturer can make a good faith argument that a slight change does not change the properties of an explosive and therefore is not a “new” explosive or firework device.
Lastly, 49 C.F.R. §173.56(a)(2) also provides: “An explosive will not be considered a ‘new explosive’ if an agency listed in paragraph (b) of this section has determined, and confirmed in writing to the Associate Administrator, that there are no significant differences in hazard characteristics from the explosive previously approved.” This requirement does not appear to require that a manufacturer submit the change to the examining agency, thereby still allowing the manufacturer to make the determination on its own. However, a change submitted through this process, by the plain language of the regulation, insulates the manufacturer from an enforcement action – providing of course that the manufacturer makes no further alterations. Furthermore, this requirement does not appear to require the examining agency to perform testing on the changed explosive, so in certain cases a comparison of the specifications could be sufficient.
Given the regulatory requirements discussed above any person familiar with the approval process can appreciate and understand that deviations may occur, but the good news is that a responsible and responsive manufacturer and/or distributor can make changes so as to meet the letter of the law and, in the process, streamline his system so as to allow for getting product to the customer more quickly (lowering inventory costs) while maintaining high levels of safety.
