The war on terrorism is being fought on many fronts. Unfortunately, the lumping of an entertainment activity such as display fireworks together with the commercial explosives industry puts the display fireworks industry on one of those fronts. To avoid becoming a victim of that war, the display fireworks industry must battle to separate itself from the high explosives industry. In this article, I discuss two approaches for achieving this objective, and each approach may be pursued simultaneously to maximize results.
The erosion of all distinctions by and between differing classes of explosives continues to harm the fireworks industry. The process began in 1970 when Congress enacted Title XI of the Organized Crime Control Act to govern the storage of explosive materials, and the momentum has seemingly escalated since the recent enactment of the Safe Explosives Act. Left undeterred, federal and state officials may one day regulate all explosives, without distinction, all in the name of “greater flexibility to the explosives industry”, according to the ATF Explosives Industry Newsletter, December 2005 Edition. In the meantime, businesses engaged in low explosives may have to suffer the burden and expense of satisfying the standards that apply to makers and users of high explosives.
The Legislative Approach
One approach is to enact change legislatively through effective lobbying, and to its credit the APA has already taken the lead in this process. However, while lobbying will never become extinct, in the current political climate the effectiveness and value of lobbying should be examined. In the end, the expectation of lobbying efforts may be over-inflated, and the consequent expense of lobbying may be too great for too little product that may arrive too late to help.
The chemical industry is among the largest makers of explosives, and the mining industry is, arguably, the heaviest user of explosives. Together, these two industries employ far more individuals while providing our national economy with essential raw materials. These factors support my belief that the mining and chemical industries have more resources to devote to effective industry lobbying and, consequently, greater access to the decision makers located in Washington. While I am certain that the mining and chemical industry lobby argues against the enactment of regulations that affects their constituents, I also suspect that the interests of the fireworks display industry are not at the forefront of their lobbying efforts.
Indeed, while the Institute of Makers of Explosives (IME) published recommended guidelines for Class 1 materials, including 1.3g materials, the Institute makes no mention of display fireworks or fireworks; instead, the IME has seemingly adopted in knee-jerk fashion the government’s approach of treating 1.1, 1.2 and 1.3 materials as one and the same. High explosives makers and users receive obvious benefits in terms of public perception by associating themselves with relatively benign 1.3 materials; the association with display fireworks, an entertainment activity, dilutes the negative image relating to high explosives (e.g., strip mining).
I am also of the opinion that makers and users of high explosives are better equipped to absorb the additional expenses of regulation and pass them along to the consumer. Consequently, the impact of further regulation of explosives seemingly has a negligible effect upon makers and users of high explosives, and a crippling effect upon the fireworks display industry.
Apart from the procedural realities of lobbying, a de-termination regarding the substance of the legislative change(s) to be proposed must be carefully evaluated. This observation rests upon the premise that the result of any lobbying effort should be a material change to the current legislation in a manner that favorably impacts directly upon the fireworks industry. By distinction, a mere clarification of current legislation may receive little, if any, attention, since lawmakers routinely remind us that the courts are responsible for clarifying and interpreting legislation. As if repeating the obvious, legislative deference to the judiciary is time-honored means by which lawmakers can shirk their responsibility.
The Judicial Approach
The other approach to successfully separating the fireworks industry from the high explosives industry is to seek and obtain judicial determinations from the courts. Fireworks display companies have ‘standing’ to sue a government agency to both interpret and enforce the relevant regulations in the manner intended by the legislators, not by some field agent. For instance, a fireworks company can file a lawsuit pursuant to the Administrative Procedures Act; the Act provides judicial review from an agency action, and the court may set aside the agency action for a variety of reasons (e.g., arbitrary, capricious, abuse of discretion, in excess of statutory jurisdiction, unwarranted by the facts or unsupported by the evidence).
While a government agency may ignore the fact that its treatment of display fireworks simultaneously as both low explosives and high explosives is illogical, a judge is duty bound to clarify and resolve any contradiction. By chipping away at the contradictions contained in the regulations, the display fireworks industry may distance itself from other commercial explosives and high explosives industries. Also, by seeking judicial oversight of government regulations the display fireworks industry conveniently avails itself of one of the fundamental checks and balances provided in the Constitution.
To the extent that the judicial approach seeks the same objective as the legislative approach—the separation of display fireworks from other explosives—no additional risks are involved. To the contrary, the most obvious advantage (of the judicial approach) is that judicial determinations will be made on a local level at a state or federal courthouse, not in Washington. Importantly, by accessing and influencing the judiciary, and by obtaining judicial determinations at a local level that can have a broad, national impact, the fireworks display industry has successfully brought the battle to its own backyards.
Interestingly, all an adverse judicial decision would cause is the continued enforcement of the regulation in dispute; meaning, the status quo remains unchanged in the event of a loss in court. Suffice it to say, the fireworks industry should pick its legal battles wisely, and pick the low-hanging fruit first; but, in the final analysis, the fireworks industry has everything to gain and little to lose by pursuing relief from the courts. Unlike the legislature that first drafted and enacted the regulatory language, the courts can not make matters worse, only better.
For example, I have previously written about the glaring inconsistencies contained in the ATF 2000 ‘Orange Book’. In sum and substance, the ATF defines display fireworks as low explosives in Subpart B as well as in the Questions and Answers section, yet the table of distances in Subpart K erases any distinction (when the net weight of display fireworks exceeds 10,000 lbs. the display fireworks distances table automatically refers you to the table of distances for high explosives, notwithstanding the existence of a table of distances for low explosives). There is no logic behind the various inconsistencies, and I remain confident that the day will come when a judge sets aside the ATF’s interpretation and, in the process, declares: “if Congress wanted display fireworks to be treated as high explosives, it would have said so.”
A more recent example of the continued erasure of any distinction by and between high explosives and low explosives is found in newly-enacted changes to C.F.R. 555.55 (cited in the ATF Orange Book as §55.55). As of July 26, 2005, ATF ceased designating licenses or permits by “class” of explosive materials. As a result, licenses and permits are issued without the designation of ‘High’, ‘Low’, ‘Blasting Agent’, etc. ATF contends that this provides “greater flexibility to the explosives industry in terms of the classes of explosives materials involved in their businesses.” At the same time, this procedure may have the unintended effect of unfairly burdening those businesses that only want to engage in one class of explosive.
For instance, it is my opinion that many display fireworks businesses want nothing to do with high explosives or blasting agents, and would not desire, nor need, these types of class designations. Arguably, since the government has expressly given a display operator the “flexibility” to include other types of explosive materials as part of its regular business activities, display fireworks businesses may receive even greater scrutiny. Insurance providers may determine that further increases in premium rates are needed to guard against instances where a display fireworks business may also operate as a dealer or user of high explosives or blasting agents. Remember, it is in the insurance carrier’s best interest to protect against all foreseen perils; including the peril where a display fireworks business neglects to fully disclose the true scope and breadth of its business operations. On the street level, an unlimited license or permit is essentially a blank license that can be used for any purpose regarding the acquisition of any explosive materials. It would behoove both the government and the affected industries to