{"operation":"document","citation":"CHI-10-003","title":"B.J. Alan Company — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2010-03-30","effective_on":null,"summary":"CHI-10-003 response to B.J. Alan Company concerning 173.56.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-10-003.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-10-003.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-10-003","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Hazmat/ChiefCounsel/CHI-10-003.pdf","body":"<<<PAGE 1>>>\n\nII.S Department\nof Transportation\n1200 New Jersey Ave., S.E.\nWashington, D.C. 20590\nPipeline and Hazardous\nMaterials Safety Administration\nChief Counsel\nOffice of\n..AR 3 0 2010\nWilliam A. Weimer, Esq.\nVice President & General Counsel\nB.J. Alan Company\n555 Martin Luther King, Jr. Blvd.\nYoungstown, OH 44502-1102\nDear Mr. Weimer:\nThis responds to your February 11, 2010 letter and your questions regarding consumer fireworks\nmanufactured in accordance with American Pyrotechnics Association (APA) Standard 87-1 and\nauthorized for transportation in commerce as a 1.4G explosive material under an EX approval\nissued in accordance with the provisions of 49 C.F.R. § 173.56(j). You state that the Connecticut\nState Fire Marshal has seized certain ground-based fountains manufactured by your company for\nthe alleged reasons that (1) \"the total weight of the perchlorates and pyrotechnic composition\" in\nthe fountains is less than 200 grams as indicated in the EX Approvals applications, and (2) the\namount of chlorates and perchlorates in a single tube exceeds 5 grams.\nUnder provisions in APA Standard 87-1 applicable to consumer fireworks,\n--A ground-based cylindrical fountain is a \"[c]ylindrical tube containing not more than\n75 g of pyrotechnic composition\" and \"[w]hen more than 1 tube is mounted on a\ncommon base, total pyrotechnic composition may not exceed 200 g.\" Section 3.1.1.1.\n--A ground-based cone fountain is a \"[c]ardboard or heavy paper cone containing not\nmore than 50 g of pyrotechnic composition,\" and \"[w]hen more than 1 cone is mounted\non a common base, total composition may not exceed 200 g.\" Section 3.1.1.2.\n--Certain chemicals are prohibited for consumer fireworks, which include chlorates (with\ncertain exceptions). Section 3.7.1 and Table 3.7-1.\nIn an attachment to an email to Julie Heckman (Executive Director of APA) on May 26, 2009,\nHarpreet Singh, of PHMSA's Office of Hazardous Materials Special Permits and Approvals,\nexplained that \"APA Standard 87-1 and the issued EX approval define the maximum powder\nweights in an approved device as described in an EX application. Therefore, variance below the\nmaximum weights described in the application and subsequent EX approval are acceptable,\nprovided it does not alter the effect of the device and the chemical compositions and\n\n<<<PAGE 2>>>\n\n2\nformulations remain the same.\" However, \"the net explosive weight per tube and the net\nexplosive weight contained in all tubes for a multi-tube item may not exceed the maximum \"per\ntube' weight or the maximum \"per device' weight listed in an EX approval on file with the\nOttice of Special Permits and Approvals.\"\nIn general, Federal hazardous material transportation law would appear to preempt any\nrequirement of a State or locality that prohibits the transportation in commerce of a consumer\nfireworks that has been approved by PHMSA under the HMR. See 49 U.S.C. § 5125(b)(1)(A).\nHowever, without further information regarding the specific EX numbers) issued for the\nfireworks seized by the Connecticut State Fire Marshal and the actual pyrotechnic composition\nof those devices, I cannot provide more specific answers to your questions.\nAn application for an administrative determination of preemption must be submitted in\nany submission should include as much relevant background information as possible, including\naccordance with 49 C.F.R. § 107.203. In addition, to the specific information specified there,\ncommunications between your company and the Fire Marshal, the January 28, 2010 ruling or\nopinion of the Connecticut Superior Court, whether your company is appealing that decision, and\nwhether the Fire Marshal or other State agency has taken further action to enforce that decision.\nI hope this information is helpful.\nSincerely,\nPut long\nAssistant Chief Counsel for\nHazardous Materials Safety Law","truncated":false,"body_characters":3846}