The events of March 2014 will not be soon forgotten by members of the consumer fireworks retailing industry. In early March, NFPA released a revised final decision (the Decision) attacking APA, unfairly, in the opinion of this author, for “APA’s unwillingness to meaningfully engage in the kind of standards development that would continue to yield quality standards consistent with the NFPA’s safety mission.“ Citing “the troubled history of standards development” for the storage and retail sales of consumer fireworks and, more specifically, sprinkler design criteria, the NFPA “has now decided to cease issuing NFPA standards for the storage and retail sales of consumer fireworks.” The Council has also contemporaneously withdrawn two related test method standards, PYR 1128, Standard Method of Fire Test for Flame Breaks and PYR 1129, Standard Method of Fire Test for Covered Fuse on Consumer Fireworks, only adding insult to injury.
Upon drilling down into these sweeping pronouncements one discovers that these extraordinary and drastic actions are reportedly being taken by NFPA in response to the fireworks industry’s purported inability to “submit test data demonstrating the technical validity of the sprinkler design criteria for the protection of retail facilities that store and sell consumer fireworks to the general public.” It is obvious to this casual observer that the NFPA’s unprecedented actions of abandoning, albeit temporarily, entire bodies of code due solely upon unresolved standards relating to automatic sprinklers can be interpreted as irrational exuberance for a variety of reasons. For instance, NFPA’s actions arrive in lieu of NFPA submitting opposition to an appeal that was recently filed by the American Pyrotechnics Association (APA) with ANSI (regarding NFPA procedural improprieties). NFPA’s departure from longstanding custom and practice relating to the processing of appeals, by not submitting arguments in opposition (to the arguments set forth in the APA-filed appeal), has led NFPA to now adopt an awkward, and untested, position. It seems that NFPA is now asserting that by professing to having unilaterally relieved itself of any obligation to set standards for the storage and sales of consumer fireworks it is, by extension, automatically relieved and excused from filing any opposition to the APA’s appeal.
While ANSI has yet to issue its determination of the APA’s appeal, NFPA’s failure to file any opposition is likely to deprive the APA from having the issues raised in its appeal decided on merits by the trier-of-fact, ANSI. NFPA’s actions are an unprecedented attempt to short-circuit the appeal process, and are seemingly undertaken to obtain an unearned and underserved advantage at the expense of the consumer fireworks industry and the enforcement community. At best, ANSI will issue a ruling in favor of APA based upon NFPA’s default in submitting any opposition or, alternatively, in its discretion direct NFPA to either submit a response to the appeal and/or engage in alternative dispute proceedings. In the meantime, NFPA’s actions deprive the consumer fireworks industry and the enforcement community of valuable guidance and predictability associated with a well-established consensus code such as NFPA 1124.
Another reason to find that NFPA is acting deliberately and maliciously towards the consumer fireworks industry is traced to the NFPA’s unabashed and longstanding admission that “as a safety organization, [NFPA] has and continues to have a long-standing advocacy position opposing, on well-documented safety grounds, any use of fireworks by consumers or other members of the general public.” It seems that NFPA recent actions is merely the product of its longstanding public position; as if the NFPA had all along been doing the consumer fireworks industry and the enforcement community a big favor by relaxing NFPA’s safety mission, in 1999, by authorizing the development of standards concerning the storage and retail sales of consumer fireworks that, ultimately, led to the incorporation of consumer storage and retail sales provisions into Chapter 6 and new Chapter 7 of the NFPA 1124 beginning with the 2003 edition and followed by new editions in 2006 and 2013. The Decision so much as says that NFPA’s actions would have occurred earlier if it were not for the countervailing views expressed by the enforcement community contending that “the consumer fireworks provisions of NFPA 1124, even though imperfect, were essential to their enforcement activities as these provisions established some important limits.
“Now that NFPA has withdrawn 1124, albeit temporarily, all transactions referring or relying upon 1124 are open to scrutiny and question that may, ultimately, only require simple updating to reflect the change in circumstances. For these reasons, it is wise to examine any contracts that may explicitly refer to NFPA 1124, 2013 Edition. Equally worrisome is the Decision’s impact upon the enforcement community, if only for the fact that the enforcement community may be inclined to fill the void created by NFPA’s cessation of authority and oversight through implementation and enforcement of regulations that are more rigid and onerous than NFPA 1124.
NFPA’s withdrawal of the 2013 edition of NFPA 1124 leads inevitably to the question regarding whether or not any prior editions of 1124 are a proper substitute, if only by default. By virtue of the fact that the NFPA’s actions are unprecedented, ‘a case of first impression’ seemingly exists. In all likelihood, the prior editions are deemed by NFPA to be outdated and irrelevant, although it has not expressed any opinion on this topic. Nevertheless, nothing prevent s all editions (2003, 2006 and 2013) from being used as a possible source of information or reference point relating to enforcement issues; in essence, a de facto usage can evolve, whereby the enforcement community applies regulations in a manner consistent with now-withdrawn NFPA 1124 (or one of its prior versions) with or without formally identifying it as such.
Even though it is NFPA’s stated intention to terminate all efforts relating to the development of standards for the storage and retail sales of consumer fireworks it is, however, determined to leave undisturbed all other provisions, including (1) the manufacture and storage of fireworks, novelties and pyrotechnics articles at manufacturing facilities, (2) the storage of display fireworks, pyrotechnic articles, salute powder, pyrotechnic and explosive compositions, and black powder at other than display sites, and (3) the transportation on public highways of fireworks, pyrotechnics articles, and components thereof containing pyrotechnic or explosive materials. According to the Decision, NFPA expects to reinstitute NFPA 1124 at a later date, but only after a TIA (tentative interim amendment) is processed, resulting in rolling back the thresholds below which automatic sprinkler systems are not required to less than 3,000 sq. ft. for new buildings and 7,500 sq. ft. for existing buildings; effectively gutting NFPA 1124 § 7.3.6.
In conclusion, NFPA’s half-hearted approach only serves to frustrate and deprive consumer fireworks retailers and the enforcement community from their ability and desire to achieve a meaningful and comprehensive set of standards. NFPA has taken its ball and left the field only to return once the contemplated TIA is processed, but it has seemingly forever abdicated any duty to promulgate standards and requirements relating to automatic sprinkler systems in retail environments, leaving a void in the regulatory scheme as it applies to retail facilities that store and sell consumer fireworks to the general public. NFPA has punished, in varying measures, consumer fireworks retailers, the enforcement community, and the general public, too.
