The following question was sent in by a FB subscriber, and the issues referenced are common to most, if not all, members of the fireworks industry.

I’m sitting here anxiously waiting on my Chinese vendor to get EX numbers assigned by phmsa so that I can get delivery on time this year. And I’m quite worried that I won’t.

It appears to me that the EX number process is still very broken. This particular vendor is telling me that they need to get 400 new EX numbers to complete my order, and they have received 12 so far (they have hundreds on application pending).

When I log in to the phmsa approvals database website and do a search for this vendor, I do find the 12 approvals they just received, and I note that they are for the exact SAME device, except in different shell sizes. Previously I thought “series” approvals were permitted so that this kind of senseless redundancy was eliminated. No wonder the vendor needs 400 new numbers!

I would really like it if your resident legal advisor could explain the “new” approvals system to all of us. Recently you reported the key change, whereby EX numbers were only granted to the manufacturer – – but the new system appears to have some serious flaws as far as I can see.

The foregoing expresses a frequently asked question and, conveniently, one need only to go online to access the DOT/PHMSA material containing a response.  While I appreciate that PHMSA seems to be constantly adjusting its rules and interpretations, the most qualified reference source would appear to be the Revised June 2012 edition of USDOT-PHMSA Explosives (EX) Approvals Regulatory Guidelines for Shipping and Transporting Fireworks.  In that publication, one of the questions cited in the section entitled ‘frequently asked questions’ specifically poses the question described by the FB subscriber.  The answer, unfortunately, indicates that there is no definitive answer; series applications will be determined on a case-by-case basis and any applicant contemplating submitting a series of devices under one EX number is explicitly instructed to contact the Approvals Office prior to submitting any application.

The response indicates that PHMSA can presently make such determinations, but it is unable or unwilling to openly publish the underlying criteria and standards.  Hopefully, it remains just a matter of time before PHMSA becomes comfortable with disclosing to the general public the necessary elements for approval of a series of devices under one EX number.  The current situation results in the submission of numerous applications for devices that, for all intents and purposes, are one and the same device except in a larger size (in this respect, fireworks shells are like footwear; same design, materials, construction and function—all things equal—just one larger size and, perhaps, different labeling).

As you can see, the situation the FB subscriber describes is both created, and owned, by PHMSA.  I know of no solution, and I submit that if PHMSA is so uncomfortable with series applications such that the applicant must, as a condition, contact PHMSA’s Approvals Office in connection with series applications, then no businessperson can reasonably expect a DOT-authorized FCA to have the responsibility and authority independent of PHMSA.  Upon applying the scenario described by the FB subscriber with the prevailing PHMSA guidelines it behooves the applicant seeking approval for a series of devices under one EX number to contact PHMSA and avoid the FCA route.  As a cautionary note, it would likely be impermissible to seek approval of a series of devices through PHMSA Approvals Office and contemporaneously submit to a DOT-authorized FCA various individual applications for devices that, in the aggregate, represent the series (that is the subject of PHMSA consideration).  PHMSA’s proposed regulation explicitly prohibits any occurrence of ‘dual-filing’ by an applicant; under the scheme proposed by PHMSA in its NPRM, applicants will choose between submitting applications to either to PHMSA or to a DOT-authorized FCA.  All things considered, these observations bolster my contention that many, if not all, applicants will remain motivated and inclined to file applications with PHMSA’s Approvals Office if the current structure and interpretation remains untouched.  As it now stands, persons desiring approval for series of devices under one EX number are constrained to pursue the process exclusively through, and with, PHMSA, leading no incentive to steer business towards the FCAs.  Ironically, PHMSA’s interpretation is likely to hinder the free flow of applications to FCAs which, in turn, delays PHMSA’s objective to alleviate some of the burden (associated with the large volume of applications when compared with the handful of employees assigned) so that, presumably, it may direct its resources more effectively.         a

In conclusion, the answer to the question posed by the FB subscriber is highly elusive and unwritten, qualifying as an enigma.  I, personally, encourage full disclosure on PHMSA’s part, provided it does not harm, injure or prejudice persons or property; with that said, unless and until PHMSA Approvals Office publicly discloses the criteria it applies (and weighs) when deciding whether or not to approve a series of devices under only one EX number, the matter will always remain the subject of speculation and conjecture.  By virtue of the lack of transparency on this subject we can expect the FB subscriber to have plenty of company, and frustration, in 2013.

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