Part 3 – The Ex-Number Approvals
Program
Donald E. Creadore, Esq.
Shortly after the publication of the first article to this 3-part series PHMSA published its “Notice and Request for Comments on the Clarification of the Fireworks Approvals Policy” (“Notice”). Admittedly, any overlap is attributable to coincidence, if only for the fact that it normally takes at least six to eight weeks to draft and approve publication of the notice. The comment period for the Notice expired in mid-January and, aptly, this final article describes some of the more salient arguments contained in the comments submitted by various commenters. Full copies of the comments are posted on PHMSA’s web site:
http://www.regulations.gov/#!searchResults;rpp=50;so=ASC;sb=docId;po=0;s=PHMSA-2010-0353.
Parenthetically, the author does not advocate any specific position or approach offered by any person or agency.
In the December 17, 2010 Notice, PHMSA announced its intent to accept applications only from the manufacturers of fireworks devices and “to consider a fireworks manufacturer to be an entity that formulates and produces a firework” while, at the same time, acknowledging that it has “for at least 10 years. . .been accepting these fireworks approval applications and issuing fireworks approvals to members of the pyrotechnic industry …” who are not manufacturers. In other words, what has been a long-standing custom and practice that the industry has come to rely upon is suddenly under attack.
There is a consensus among the commenters contending that, since PHMSA has been actively complicit with industry by working together in a harmonious manner to develop and cultivate the approvals practices that are now under agency review, it is unjustifiable for PHMSA to abruptly revert to the plain meaning of existing regulations without first affording all interested persons the opportunity to be fully heard. It is a matter of record that ten years have passed without incident; thus, PHMSA’s recent determination to try and change the rules of the game through an announced policy change without first allowing the interested parties to be fully heard via Notice and Comment under the Administrative Procedures Act is, in my opinion, a dud.
Other commenters assert that limiting the regulation to only manufacturers will, in actuality, create a hardship upon Chinese manufacturers while also causing the number of applications to significantly increase, thereby defeating the goal of reducing paperwork. Interestingly, commenters that are manufacturers explain that they are only following both the letter and spirit of the regulation by interpreting the regulation as not placing any responsibility or liability upon the customer.
Numerous commenters have recommend that PHMSA stop issuing EX numbers altogether citing, among other factors, CPSC’s new testing requirements and the well-established safety record of transporting consumer fireworks in the US. Arguably, this recommendation would also place the primary responsibility for proper classification upon the person who first offers it into commerce in the U.S.; incidentally, this is, in this author’s opinion, what PHMSA is seemingly trying to accomplish through this policy change.
When read together, the comments submitted in response to the Notice conveniently highlight the fact that changes to the current explosives approvals program will, regrettably, cause some persons to be dissatisfied with the results and suffer hardship as a consequence. Understandably, many persons have been busy proactively instituting various inexpensive and effective solutions and business practices in order to minimize the financial and administrative impact associated with recent announcements by PHMSA, in addition to other changes on our horizon.
