As we enter the next decade of this millennium, I thought I would mention some odds and ends.
The 4th IFA convention in Liuyang was heavily attended by scores of fireworks companies but, in the modest opinion of the author, there was a noticeable absence of US-based attendees. Nonetheless, the meetings proved an invaluable experience and unqualified success for all who had attended. Additionally, a local Chinese website operator, www.fireworkstown.com, hosted a seminar about the United States legal process and how to create effective and enforceable contracts. This event, alone, was attended by nearly 100 principals and members of management, representing a broad array of fireworks businesses.
A recent decision from King County Superior Court, Washington, rejected efforts by a local environmentalist to block a Fourth of July fireworks display pending environmental review. The judge held that the public celebration exception to the State’s Environmental Protection Agency’s assessments applied to such displays. Although this author has not yet read a copy of the decision, the limiting language this decision aside, it should be cause for concern for display operators in the State of Washington performing non-public displays. The position stated in this legal decision is, in my opinion, part of a trend although there are a variety of available responses and defenses.
Another trend in the law is the rise in criminal prosecutions, and possibly convictions, for fatalities that occur by reason of fireworks, notwithstanding that the incident may be unintentional. Some readers have been following a case in England where the owner and son of a fireworks factory are facing manslaughter charges in connection with the deaths of two firemen. According to the prosecution, the son was preparing materials for an upcoming display, when a fire broke out and quickly spread to other areas of the facility, causing uncontrolled explosions. The firemen were summoned to respond, and the two fatalities occurred when a metal container packed with fireworks exploded, hurling fragments. The prosecution contends that the container was inadequate for purposes of fireworks storage, and that both the owner and the son were familiar with this fact as well as with the attendant risks associated with improperly storing fireworks. The specter that a peril arising in the regular course of business by legitimate corporate citizens, something traditionally best left to the province of civil remedies, has become the source of stiff criminal penalties sends another chilling message to display owners and operators.
The word is that the recent top-down reorganization at DOT will result in increased enforcement efforts and, as a consequence, even closer inspection of the fireworks industry by DOT agents. My understanding is that the DOT enforcement staff will be increased to some 90 agents, of which 30 will be assigned to field enforcement. These agents are being instructed to institute a zero-tolerance policy and, in my opinion, the agency will determine that one of the simplest and most expedient methods for the agency to effectuate such a policy responsibly and fairly is to rely upon the SAFER statistics as grounds (among others) to commence enforcement and suspension proceedings. The DOT is also likely to exhibit no leniency for importing articles without a valid EX number, or labeled with an unapproved EX number. These measures are purportedly being undertaken to reverse an agency “culture plagued by a belief that it should make things as easy as possible for the industry that it should be regulating,” Rep. James Oberstar, D-Minn., the chairman of the House Transportation and Infrastructure Committee, said. These measures, if fully instituted, will likely prove to be a boon for the lawyers that defend industry members.
