B.J. Alan Company — Hazardous Materials Safety Interpretation

Page 1II.S Department of Transportation 1200 New Jersey Ave., S.E. Washington, D.C. 20590 Pipeline and Hazardous Materials Safety Administration Chief Counsel Office of ..AR 3 0 2010 William A. Weimer, Esq. Vice President & General Counsel B.J. Alan Company 555 Martin Luther King, Jr. Blvd. Youngstown, OH 44502-1102 Dear Mr. Weimer: This responds to your February 11, 2010 letter and your questions regarding consumer fireworks manufactured in accordance with American Pyrotechnics Association (APA) Standard 87-1 and authorized for transportation in commerce as a 1.4G explosive material under an EX approval issued in accordance with the provisions of 49 C.F.R. § 173.56(j). You state that the Connecticut State Fire Marshal has seized certain ground-based fountains manufactured by your company for the alleged reasons that (1) "the total weight of the perchlorates and pyrotechnic composition" in the fountains is less than 200 grams as indicated in the EX Approvals applications, and (2) the amount of chlorates and perchlorates in a single tube exceeds 5 grams. Under provisions in APA Standard 87-1 applicable to consumer fireworks, --A ground-based cylindrical fountain is a "[c]ylindrical tube containing not more than 75 g of pyrotechnic composition" and "[w]hen more than 1 tube is mounted on a common base, total pyrotechnic composition may not exceed 200 g." Section 3.1.1.1. --A ground-based cone fountain is a "[c]ardboard or heavy paper cone containing not more than 50 g of pyrotechnic composition," and "[w]hen more than 1 cone is mounted on a common base, total composition may not exceed 200 g." Section 3.1.1.2. --Certain chemicals are prohibited for consumer fireworks, which include chlorates (with certain exceptions). Section 3.7.1 and Table 3.7-1. In an attachment to an email to Julie Heckman (Executive Director of APA) on May 26, 2009, Harpreet Singh, of PHMSA's Office of Hazardous Materials Special Permits and Approvals, explained that "APA Standard 87-1 and the issued EX approval define the maximum powder weights in an approved device as described in an EX application. Therefore, variance below the maximum weights described in the application and subsequent EX approval are acceptable, provided it does not alter the effect of the device and the chemical compositions and#

Page 22 formulations remain the same." However, "the net explosive weight per tube and the net explosive weight contained in all tubes for a multi-tube item may not exceed the maximum "per tube' weight or the maximum "per device' weight listed in an EX approval on file with the Ottice of Special Permits and Approvals." In general, Federal hazardous material transportation law would appear to preempt any requirement of a State or locality that prohibits the transportation in commerce of a consumer fireworks that has been approved by PHMSA under the HMR. See 49 U.S.C. § 5125(b)(1)(A). However, without further information regarding the specific EX numbers) issued for the fireworks seized by the Connecticut State Fire Marshal and the actual pyrotechnic composition of those devices, I cannot provide more specific answers to your questions. An application for an administrative determination of preemption must be submitted in any submission should include as much relevant background information as possible, including accordance with 49 C.F.R. § 107.203. In addition, to the specific information specified there, communications between your company and the Fire Marshal, the January 28, 2010 ruling or opinion of the Connecticut Superior Court, whether your company is appealing that decision, and whether the Fire Marshal or other State agency has taken further action to enforce that decision. I hope this information is helpful. Sincerely, Put long Assistant Chief Counsel for Hazardous Materials Safety Law#