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Wednesday, December 11, 2013

Fireworks Display Operator Cleared

A very important fireworks case has been winding its way through the Courts in England.  A fireworks display operator was accused of 7 counts of reckless or negligent homicide resulting from a fireworks display which were reduced to "failure to insure the safety of others".    The accident on M5 in Somerset, England resulted in seven people being killed and 51 were injured.  The fireworks display operator was cleared of breaching health and safety laws by a jury at Bristol Crown Court on the direction of a judge.  In the United States this is called a "directed verdict".

A "directed verdict" is rather rare and only occurs when the Judge is convinced as a finder of fact that there is no possible way that a conviction should occur.  In those cases where a "directed verdict" is granted, the Judge takes the guesswork out of the jury system and decides the case or orders the jury to decide the case in favor of the Defendant.  The Government is not entitled to a directed verdict.

This case resulted from a massive multi car accident on a major highway in Great Britain.  The fireworks operator, Geoffrey Counsell, was charged because the fireworks show that he was conducting caused some smoke to waft its way over the highway.  Mr. Counsell was accused by the Government of not insuring the safety of others when he was conducting a fireworks display well off the highway at a rugby club, at least 200 meters.   The night was foggy anyway and the smoke did not clear right away.  Drivers encountered a complete "whiteout" of conditions.  Mr. Counsell has been accused of causing these deaths and injuries from the fireworks display.  Nothing was ever said about the motorists failing to recognize the danger and slowing their vehicles down.  Witnesses testified that the fireworks smoke was actually drifting away from the highway.

The Judge in the case decided that there was no violation of the fireworks law or the Health and Safety Code because there was no recognized danger from fireworks smoke.  Mr. Counsell provided a statement which indicated that the prosecution was motivated by "finding someone to blame" for the accident.

This is an important decision for fireworks companies not only in Great Britain, but in the United States as well.   Had the government prevailed, then it is conceivable that future fireworks operations could have been subject to criminal prosecution when something would happen, even if tangentially involved.

The prosecution of fireworks display operators is not unknown in the United States, but generally those prosecutions have been for blatant violations of the law.  {Remember the tour manager in The Station fire in West Warwick Rhode Island plead guilty to 27 counts of manslaughter for his role in that fireworks tragedy}.   However there was one prosecution in Wisconsin (Michael Rose) where the pyrotechnic operator was charged with several felony and misdemeanor counts after 11 people were injured as a result of a malfunction of a fireworks device in a tube.  It was determined that in Mr. Rose's case, the fireworks display set up was in direct contravention of accepted industry practices for being too close to the crowd, but a permit was granted by the local AHJ which approved the set up.  However the AHJ was never charged.

The permit should have been the document that prevent prosecution, but an overzealous prosecutor wanted to blame somebody for the 11 people being hurt, focused her attention on Mr. Rose.  After all of the posturing and quibbling, Mr. Rose plead "no contest" to 3 misdemeanor counts of "negligent use of burning materials" and had to pay a fine.  This prosecution of Mr. Rose was similar to the witch hunt of Mr. Counsell in Great Britain.

Fireworks display operators are charged with the safe operation of fireworks displays and when an accident occurs, they are generally found to be responsible.  That responsibility should not rise to the level of criminal activity except when the display operator consciously ignores the rules and safety standards to create a situation that will harm and potentially kill people. 

Anyone remember the tragedy in Charlevoix, MI?  That operator created a situation and convinced the local AHJ to allow a "killing field" near the docks in Charlevoix.  He was not charged nor did he face any charges.  To the best of my knowledge, no AHJ has ever had to face a criminal or even a civil jury when their "approval" allows a violation of the NFPA Codes and there is death or destruction.

The clearing of Mr. Counsell is a significant victory for fireworks operators all over the world.  However the message is very clear that government prosecutors and the media will try and blame fireworks and those people that conduct the shows whenever they can stretch the truth to fit their own anti-fireworks agenda.

Friday, August 16, 2013

USDOT/PHMSA POLICY CHANGES EVERY FIREWORKS COMPANY SHOULD KNOW

The USDOT/PHMSA makes policy decisions everyday, but most of them are not published in the Federal Register.  Some of the decisions that are made by policy makers at PHMSA clearly show little if any understanding of the fireworks industry and its operations.  Investigators will be sent out to importers and other companies to examine the DOT/PHMSA "paperwork" and find errors or violations.  These field investigators then issue "Exit Briefings" that detail the violations that they found and could serve as the basis for future monetary sanctions.

    As attorneys that have represented fireworks companies for over a quarter of a century, we have found that the field investigators decisions do not always translate into an automatic fine and enforcement action.  Many times the USDOT/PHMSA attorneys have to review the material and then can not justify the actions of the field investigators.  There are many occasions when the USDOT/PHMSA attorneys will file Notice of Probable Violations only to dismiss them when the full story is explained to them.  We have had a few occasions recently where the USDOT/PHMSA attorneys have dropped cases or made policy decisions because the field or internal positions were not correct.  Here are a few that we have experienced in the last couple of months:

     1.  USDOT/PHMSA can not Impose Sanctions on Broker.  We have had 3 cases in the past several months where USDOT/PHMSA has attempted to impose significant monetary sanctions against Brokers in China or Hong Kong.  In one matter the USDOT/PHMSA asked for a fine of over $300,000 because of supposed EX and shipping issues.
     Under the DOT regulations, a person that is not involved in the shipping or pre-transportation process can not be held responsible for any violations.  49 CFR sec. 171(a)(1 and 2).  The regulations spell out several specific functions that a person or entity must perform before they can be held responsible.  The DOT/PHMSA investigators do not fully understand the entire process in China and believe that the Broker is the entity that actually physically loads the container, issues the documents, determines the EX numbers to be assigned and is intimately involved in the process.  What I really think happens is that the Broker is the only entity that the DOT/PHMSA can attack in the process.
     What happens in these cases, the DOT/PHMSA attorney was provided details of the entire process and how shipments really work.  Once they understood that the Broker is not defined in the regulations as meeting this criteria, the cases are quickly dropped.  The Brokers were not fined any amount from the USDOT/PHMSA.
    This could mean that enforcement actions against Brokers in the future could diminish.

     2.  Finale Chains and EX Approvals.  For the past several months, the USDOT/PHMSA investigators have created violations for chained finale shells that exceed the number of shells on the approval documents.  For example if a manufacturer had approval for 10-3" shells in a chain and shipped a chain of 24, then the uninformed investigator would create a violation.  This has caused some turmoil in the supply process.
     The basis for the "violation" was that the approval said 10 shells and there are 24 shells in this chain and therefore it is a "new explosive" and needs its own EX number.  This clearly shows a complete lack of understanding of the regulations and what constitutes a "new explosive".  49 CFR sec. 173.56(a) has this definition.  A "new explosive" is one that has had a change in formulation or design "so as to alter the properties of the explosive...".  Furthermore, the explosive must have a difference in hazard characteristics from the explosive previously approved.  Adding some additional shells to the chain does not meet this definition.  The investigators are not properly trained nor do they understand the physical and chemical properties of the devices.  They arbitrarily determine that if the approval is for 10 and the chain has 24, then this is a "new explosive".  To them, it does not matter how the devices are packed or sold.  One field investigator in the Midwest did not care what the regulations stated, how the devices were packed or that APA 87-1, sec. 4.4 approves combination devices.  Luckily he was set straight, but he still refuses to withdraw the "violation" on his Exit Brief.
    Once again the attorneys had to file a Notice of Probable Violation and then be educated on this entire process.  The technical people at the DOT admitted that this particular device with the increased number of shells in the chain really was not a "new explosive" and the violations were withdrawn.

     3.  Shells or devices that have "color" issues will not serve as a basis for a violation.  Another popular violation topic was the issue of different colors from the approval document.  A field investigator may find that a device is described as  "purple changing to gold brocade" and the approval document only allows red, blue, orange, silver, gold or yellow.  The field investigator immediately seizes upon a "violation" because the color purple was not "approved".  This has caused all sorts of turmoil in the manufacturing and importation areas.
     Once again, the field investigators training has failed them and maybe a refresher in elementary art might be appropriate so that they understand the difference in "primary", "secondary" or "tertiary" colors.  Maybe better yet, lets get them some simple color wheels so they understand that red and blue can make purple or that blue and yellow will make green.
      The USDOT/PHMSA attorneys will not proceed with Notice of Violations for matters involving a difference of color only on shells or devices.  This means that if a note is received from a field investigator that says that the "color is not approved" then there will be no violation and that should be withdrawn.  Some field investigators are stubborn and even when told this refuse to admit their error.

     These are some important and changing decisions from USDOT/PHMSA that everyone in the fireworks industry has suffered through these past few years.  The arbitrariness of the inspection process, the decisions that are made on the "fly" by field investigators has caused a great deal of turmoil because PHMSA needs to justify its own prior actions.

    If you are faced with a DOT/PHMSA or even a DOT/FMCSA audit or review, you have the right to contact  an attorney and discuss the matter with them, during the course of the Audit.  You also have the right to close at the end of your normal business day and not incur overtime expenses.

    If you have questions or a situation arises during the course of an audit, call us at 800-481-0900.  Ask for John Brooke or John Stevens. 

Thank you.

John H. Brooke

DOT/PHMSA-Policy Changes from Active Cases

US DOT/PHMSA makes some interesting rules even when they do not publish in the Federal Register.  Sometimes they save some of their best decisions for active cases or their internal operating procedures.  Anyone that has ever dealt with PHMSA knows that internal policy issues are a moving target depending on the day, the person and the pressure from Congress.  Most of the "policy makers" make certain decisions that can not be justified.  However in the context of active cases where the Agency wants to impose significant fines, there is a different story.

      As an attorney that handles these cases, I have found out first hand some policy changes that PHMSA does not like to promote or even publish.    PHMSA understood in the context of active litigation that the some of the policies were not justified or supportable in an actual court of law.  The USDOT/PHMSA attorneys are the ones that have to try and justify these concepts and many times have to drop them because in reality they make no sense.

     1.  Imposition of Fines and Penalties against Foreign Brokers.  For years, PHMSA allowed anyone to obtain EX numbers for the commercial transportation of explosives.   There was no requirement for a manufacturer or even an importer to have the EX numbers.  Many of the early EX numbers were assigned to trade groups like the APA or some other entity.  This changed in 2011 when PHMSA made the unilateral decision to only allow manufacturers to apply for and obtain EX numbers.  This means that many of the EX numbers issued to brokers or others were still valid and useable.
          The DOT has attempted to impose significant sanctions (in one case over $350,000) against companies that may have shipped items to customers.  There may have been issues with the EX number and the product, so the DOT tried to impose these sanctions on the broker in China.   The broker only supplies the documentation from the manufacturer and has the export license in China to move product out of the country to the customers in the US.  The broker does not control the documents from the manufacturer nor do they meet the definition of being involved in transportation as set forth in 49 CFR sec. 171.1(b) or (c).  It is clear that while the officials in the DOT/PHMSA may not understand how commerce is conducted, the attorneys are getting educated on this process.  The USDOT/PHMSA attorneys have dropped cases against 3 different brokers because they did not meet the regulations and were not involved in pre transportation functions or movement of product issues as defined in the regulations. 
      
     2.  Issues with designation of "color" in devices.  Much has been made by DOT/PHMSA inspectors about aerial shells or devices with descriptions that include colors not in the official approval.  Many DOT/PHMSA investigators automatically have determined that a violation exists because the official application for a device has the color "gold" and the description on the shipping documents may refer to "yellow" or even "green".  This was an automatic violation that DOT/PHMSA inspectors would prevent merchandise from entering the marketplace and being held in the warehouse.
         In several cases with the DOT/PHMSA when Notice of Probable Violations were issued, the DOT/PHMSA position has changed.  No longer will issues of "color" solely be the basis for a violation or the banishment of the product from commercial transportation.  One investigator in the Midwest refuses to recognize the directive from not only his own attorneys, but also from the technical personnel and still has blocked the shipment of finale chains from a Chinese manufacturer to customers because of the issue of "color" [the approval documents had a wide range of color options, but did not include specific colors like "purple" or "aqua" eventhough red, blue, yellow, orange, white, gold, silver, violet and some other colors were approved.-I think that this investigator better go back to elementary school and try and understand the "color wheel" on how primary and secondary colors work-ED.]

     3.  Chained Finale Shells- For quite some time DOT/PHMSA investigators have singled out finale chains of shells that are greater in number than the approval documents as a violation.  If a manufacturer has obtained an approval for 10 chained together shells and they ship 24 in a chain, uniformed and overzealous DOT/PHMSA investigators would immediately seize on that issue and claim that the product was not approved for shipment since it was a "new explosive" and did not have a specific EX number for the chain of 24.  As ridiculous as this sounds, the investigators believed that the sheer number of shells chained together was sufficient to create a whole separate "hazard" that needed a new EX number.  The training that these investigators received before being foist upon the fireworks and explosives industry was ludicrous.  They don't even know their own regulations.
     The regulations for a "new explosive" is found at 49 CFR sec. 173.56.  They don't understand that for a "new explosive" the change must be "so as to alter any of the properties of the explosive..."  Furthermore, there must be "...significant differences in the hazard characteristics from the explosive previously approved."  49 CFR sec. 173.56(a)(2).  These criteria are not met when just changing a finale chain from 10 to 24 of 3" shells.  Furthermore APA 87-1, sec. 4.4 governs combination devices and allows this type of device to exist.
     This change in policy has corrected many, many "Exit Briefings" issued by uninformed investigators that saw a number of finale shells approved and then saw a different number of shells on the packing lists. 

     These are significant and important changes within the DOT/PHMSA inspection process that all importers must consider before allowing the DOT/PHMSA investigators to interrupt your inventory and sales.   This product has cost you a great deal of money just to get it to your warehouse and you should not let an investigator that has a minimal amount of understanding of the entire process prevent you from your distribution.

   If you have questions, even questions during a DOT/PHMSA inspection, you have the right and ability to contact an attorney and seek legal advice.  We are available to work with you and even attend inspections.  Please call us if you need help.  phone:  800-481-0900.  Ask for John and you will get either John Brooke of John Stevens.

Thank you.  

John H. Brooke

Wednesday, June 27, 2012

GOVERNMENTS LOVE TO IGNORE FIREWORKS LAWS

              Local governments in Michigan, Indiana are openly rebelling against the State and they don’t seem to care.  Many Local authorities do not like fireworks and believe that they have some superior sense of “right and wrong” to justify their actions to openly defying state law in enacting bans of consumer fireworks only and not other commodities.

              A recent article in Macomb Daily touts a Warren, Michigan mayor as stating that knows that his local city ordinances conflict with state law and he is happy that it does.  This Mayor (James Fouts) seems to believe that just because he does not like fireworks that he can defy the State Legislature and do whatever he wants.  Similarly, local governments in Indiana understand that the State Legislature has enacted a state law that gives the State Fire Marshal the ability to regulate fireworks and protected certain days from local interference as to their use and they don’t care.  They know what the law says and they are ignoring it to satisfy their own agendas.

              Local governments and their attorneys are researching the state law, knowing that they have limited authority to act, but are flaunting the rule of law and enacting ordinances which prohibit the sale and use of fireworks.  They are doing this in the name of “public safety” as their justification.  The fact that the state law does not give them this power is completely ignored.  They are going to enact their bans and impose their will on a commodity like fireworks because in their twisted sense of logic they are “doing what is right”.

              This same mentality from government officials has given the United States a black eye in the past and continues to haunt us today.  The US government supported slavery, removed Native Americans from their lands and marched them to barren wastelands (many dying along the way), interned Japanese in WWII, adopted the concept of “separate but equal” as the law of the land and destroyed most of our civil liberties with enactment of various measures to “protect us”.

              Before anyone starts ranting and raving that I am comparing the loss of the use and sale of fireworks to some of the most egregious transgressions in American history, it must be understood that the point being made is that all of these actions were taken by government officials that wanted to ignore the rule of law and do what was “right” in their minds.  It does not seem to matter to society that in later years, history showed these policies to be flawed in logic or that there were long term negative consequences to the entire social fabric for which we are still paying the price.  The use and sale of fireworks are not akin to the enslavement of people, but it is a symptom of an overall disease of local government officials that are deciding (with only minimal input and research) their will on the majority.

              As a former elected official, I fully understand how the game works.  Someone calls the office of the local county commissioner or mayor raising hell about this thing or that thing.  The immediate reaction of the elected official is to enact some sort of official pronouncement, ordinance or law to address the situation and “solve the problem”.  The logic of an elected official in this capacity is that if one person takes the time to call then this must be a significant and serious issue for lots of people. The reality is not the case.  More times than not, the person calling the office raising hell is just one person that has some particular ax to grind or agenda and they know how the game is played.  They call the office, make a nuisance of themselves until they get what they want.  The saying that the “squeaky wheel gets the grease” is more of a mantra in government than a quaint saying.

              The fact that a rule of law exists is one of the cornerstones of our democratic society.  We go around the globe touting our “rule of law” but back home we step all over it, ignore it, bend it and then when our histrionics don’t accomplish our own agenda, we simply don’t follow it.  A “rule of law” is more than just a party favor to accept or reject depending on our own elected officials fiat.

              Elected officials in Michigan and Indiana should be ashamed that they make these types of decisions to ignore law because they simply disagree with the majority.  They should be held personally accountable and not rely upon the public coffers to pay for their defense and bad judgments.  Elected officials can trample rights and impose arbitrary rules all without any type of accountability because we let them!

              Before opponents start railing over this point, see my next blog post!

Tuesday, March 27, 2012

Judge Finds Probable Cause for Criminal Charges

A judge in Wisconsin found that probable cause for the filing of felony criminal charges existed in a fireworks accident from Rome, Wisconsin. The accident happened in July 2011 when a lead pyrotechnician and a local fire inspector/chief allowed a crowd of people to sit within 39 feet of a five inch shell being discharged for a July 16 fireworks show for a pizza parlor. The proper distance for the crowd should have been 350 feet or more.

The judge found that probable cause to maintain criminal charges existed against the lead pyrotechinician for injury by neglgent handling of explosives, a felony. This means that the lead pyrotechnician (Michael Rose) will have to submit his case to a jury to decide his fate for the injuries sustainted in the July 16,2011 accident in which 11 people were injured. Seperate civil cases for injuries are also pending.

The affidavit filed by the Prosecutor in this case showed that the lead pyrotechician could not remember the appropriate distances between the crowd and the display and that there may bave been several inadequacies of his training. The lead pyrotechnican supposedly had 34 years of experience in conducting fireworks displays.

There seems to be little question that the guidelines of NFPA 1123 were brazenly violated not only by the lead pyrotechnicain, but also the local fire chief. One has to wonder why the Fire Chief that authorized this outrageous behavior is not also being charged criminally, even with conspiracy.

While i don't fault the Prosecuting Attorney for taking the action against the lead pyrotechician, I have to fault her for singling out the fireworks and not the actual Authority Having Jurisdiction (AHJ) which allowed this activity to occur not only in 2011, but according to the probable cause affidavit, in prior years as well.

Sunday, September 18, 2011

Bird Deaths in Arkansas Misreported and blamed on Fireworks

Fireworks Not the Cause of Massive Bird Deaths in Arkansas
Three independent laboratory test results on redwing blackbirds that died in Beebe, Arkansas neighborhood show the cause of death was blunt force trauma. The testing was conducted by Southeastern Cooperative Wildlife Disease Study, Arkansas Live Stock and Poultry Commission and the U.S. Geological Survey’s National Wildlife Health Center. The test reports revealed hemorrhaging consistent with blunt trauma and ruled out other factors.
The investigation also showed that these birds were part of a massive flock of redwing blackbirds near the neighborhood that totaled over 1.6 million birds. The flock of redwing blackbirds was so large that Sidney Gauthreaux from Clemson University could track the roost movements in radar display images.
According to the radar display images the birds started flying at roof top level around 10:30 p.m. A second flight was reported around 11:30 p.m. It is estimated that the birds fell before midnight on December 31st.
Blackbirds have poor night vision and typically do not fly at night. It is not typical behavior to have the roost flying at 10:30 p.m. and 11:30 p.m.
The number of birds dying in this roost is not unusual. Traumatic die-offs are common in animals that congregate or travel in large groups. In the Beebe, Arkansas instance the number of birds dying at this particular event was less than ½ of 1%.
Records kept by the U.S. Geological Survey lists at least 16 events over the past 30 years which 1,000 or more blackbirds or starlings died en masse. History is replete with large en masse die-offs of animals in large groups. According to the USGS, mortality events like this in wildlife are normal and a "fact of life". These birds did not fall out of the sky as dead carcasses they flew from the sky and hit something causing their death.
In most instances, such traumatic injuries in wild birds are due to flying into stationary objects. It is rather expected and there is nothing mysterious about these types of events occurring in the wild. The most remarkable aspect of this event in Beebe, Arkansas was the size of the roost initially. What caused the birds to fly around at night has not been determined and cannot be determined. Reports of loud noises before the birds started flying are unsubstantiated. Generally firework activities around New Years are concentrated at around midnight which would have been approximately an hour and a half which was long after the flock was moving.
It is absolutely irresponsible to insinuate that fireworks had any important or significant impact in the cause of these deaths. It is pure speculation that the deaths of these starlings are related in any way to fireworks.

Sunday, June 19, 2011

Fireworks in Kentucky

The Kentucky Legislature has opened up the state to all class c fireworks. We are setting up a state association to deal with the problems created by the cities and state fire marshal. Some cities don't like this law and are putting up every roadblock they can.
There are still some things that can be addressed, but the Commonwealth needs to hear from the industry. Great success can be made by numbers getting together to make reasonable regulations. Even competitors can compete in the marketplace so long as everyone can compete on the same page.