Most recently, in March 2013, PHMSA issued a safety guidance clarifying EX Classification Approvals with Expiration Dates, “as it applies to the manufacturing and the transportation of the firework devices.” (italics added). This explicitly means that the guidance distinguishes between transportation activities and manufacturing activities, and it does.
Importantly, EX Approvals remain valid for items in the transportation system provided the device was manufactured prior to the expiration date of xhe approval. However, once the approval deadline has arrived all manufacturing under that EX approval must cease, although the manufacturer, or its designated US agent could apply “to renew an expired EX approval for the specific purposes of continuing the manufacturing of the firework device.” While it may appear illogical to ‘renew’ something that has already expired (we renew our drivers’ licenses and passports prior to expiration), I can only interpret this to mean that manufacturers that already hold EX Approvals may seek to renew them. As a catch-all, fireworks approvals with expiration dates will expire, by default, on December 31, 2015, with one important exception: EX Approvals expiring on January 1, 2013, and thereafter, shall expire on the stated dated and cannot be extended. The unstated goal of these actions is to achieve an environment where only manufacturers have EX Approvals in their possession, to the exclusion of all other persons. Unfortunately, the guidance does not provide any direction or insight regarding finished devices manufactured in the weeks, or months, leading up expiration of an EX Approval that may still remain in China, or at sea, subject to shipping to the intended customer, on the expiration date. Chinese manufacturers commonly ‘make-to-order’ and may find themselves left with product trapped inside China and unable to transport them to the United States.
In my opinion, PHMSA has neglected to describe or specify the meaning of the vital term “transportation system” in its guidance; especially whether the term is limited to the United States or its meaning is broader to include foreign transportation systems. Customary rules of statutory interpretation would lead to the conclusion that the term is to be broadly applied unless otherwise specified. From the lens of practicality, it would be unfair, and likely unintended, to require man-
ufacturers to ensure that all devices are lawfully in the United States on the date of the expiration of the accompanying EX Approval. Nothing in the regulations or the EX Approval makes this a condition (upon the recipient) of the approval. Therefore, I believe it fair to interpret the deadline as applying to manufacturing activities only and, accordingly, all devices manufactured up until the expiration date can be legitimately and lawfully transported to the United States under a valid EX Approval. In the final analysis, there is no meaningful distinction, in terms of the effectiveness of the regulations, between transportation functions in China and transportation functions in the United States; transport is transport, a function that is readily distinguishable from the manufacturing process. As a precautionary measure, shippers may want to alert PHMSA regarding importation of any fireworks known to have been manufactured prior to the expiration date to obtain its knowledge and, hopefully, its consent.
I suspect that for the foreseeable time PHMSA will encounter issues establishing the date of manufacture, or ‘birth date’, of devices being transported (to or throughout) the United States, since there appears to be nothing preventing a manufacturer from continuing to produce a device after the expiration date except, of course, PHMSA detection and enforcement. Notwithstanding this threat, the manufacturer can always defend an alleged violation by saying the device was manufactured prior to the expiration date—how will PHMSA prove otherwise—although the credibility and value of this defense will diminish as time progresses. To avoid unnecessary disruption of shipping activities involving fireworks with expired EX Approvals, shippers may want to issue copies of the Guidance to all drivers or include it among the shipping packet or tape it to the cab or trailer.
Information regarding this matter can be accessed at Federal Register Notice, Clarification of the Fireworks Approvals Policy, 76 FR 38053 (June 29, 2011), and, Fireworks Approvals Policy, 77 FR 429 (January 5, 2012).