The industry has experienced an unprecedented growth in regulation and compliance matters, and PHMSA continues to lead the charge in sheer number of changes to its existing protocol and regulations. Since June 2011, PHMSA has released a series of clarifications and proposals that profoundly alter, and impact, trade practices. The most recent announcement is dated March 1, 2012, and it is the subject of this article.
PHMSA released its announcement by communication expressly addressed to fireworks shippers, distributors and carriers, and related industry associations, to “assure that every American has a safe and enjoyable Fourth of July.” After making this salutary remark, PHMSA proceeds to recite the results of its numerous investigations involving transportation and storage of consumer fireworks (not display). In the agency’s opinion, the investigations have led it to determine that widespread problems exist in this area of the industry, “including a lack of understanding of applicable Federal regulatory requirements covering hazard communication, training, and driver qualifications.”
Regrettably, PHMSA fails to also mention that any lack of understanding may be due, in whole or in part, to the fact that PHMSA’s efforts to modify and clarify its regulations are a work in progress; as one PHMSA official astutely observed, the regulatory environment at PHMSA is akin to changing the wheels on a moving vehicle. This remark does not bode well for this industry since I have never seen a tire being changed successfully while the vehicle is also moving; if PHMSA really is attempting to do the impossible then industry may be its victim.
In its communication, PHMSA expressly enumerates the following violations and safety problems for the reader’s consideration:
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No PHMSA (hazmat) registration
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No hazmat placards
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Limited/no hazmat training
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No CDL with hazmat endorsement (if placarded)
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EX approval numbers do not match with products or product codes
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Unapproved devices (no EX approval)
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Defective packaging
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Non-UN standard/compliant packaging
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No 1.4G or 1.3G hazard labels
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No EX number on package or shipping document
Starting with the basic premise that consumer fireworks are subject to regulation when transported in commerce, PHMSA goes on to explain the various regulatory requirements applicable to consumer fireworks shipments. In addition to complying with all general HMR requirements, all shipments must also be accompanied by shipping papers describing the explosive in requisite detail, including:
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UN ID number prescribed for the explosive material (e.g., UN335, 336)
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Proper shipping name prescribed for the explosive materials
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Hazard class or division
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Packing group
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For Class 1 materials, the quantity must be expressed as net explosive mass
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EX number must be placed on either packaging or shipping paper
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Number and type of packages must be indicated
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Telephone number of emergency contact for response and a description of the risks associated with the shipment and what, if any, immediate precautions are to be taken in the event of an accident
PHMSA also provides guidance regarding packaging containing explosives (as distinguished from shipping papers that accompany explosives). The packaging must have the following marking for it to be considered complaint with applicable regulations:
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Ex Approval number (if not on shipping paper)
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Proper shipping name
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UN ID Number
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UN packaging specification markings
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Package labels for the articles
In another section PHMSA addresses the actual transportation of boxes of consumer fireworks. In this passage, PHMSA briefly recites standards pertaining to loading, blocking and bracing all shipments to restrict movement and to protect against ignition sources, as well as training qualifications for all persons involved with the transportation of the shipment, such as persons who load and unload the vehicles and their drivers. For shipments in excess of 1,001 pounds, gross weight, additional driver qualifications apply, the vehicle must be placarded, and the shipper has stricter requirements to comply with.
PHMSA’s communication ends off by explaining the consequences of violating its regulations, and the penalties are substantial; up to $550,000 and 10 years imprisonment for a criminal penalty, while civil penalties are capped at a maximum of $110,000 per violation. These penalties are much harsher than previous penalties, and everyone who transports materials subject to PHMSA regulation should scrupulously take note of the continuing changes at PHMSA that will undoubtedly change business practices and may also adversely disrupt lives.
PS: I want to extend a formal thanks to the entire Foti family for providing me with a truly unique experience at the 2012 Sydney Harbor fireworks. I also mourn the passing of Carmen Foti, Australia’s #1 travel agent in my book. The entire family is a class act. Cheers!
