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ATF Regulatory Changes - Affecting All of us

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  • pyrowoody2
    For those of you who do not subscribe to the lists (PML and/or PGI), the following was posted by John Steinberg, PGI 2nd VP. It covers DOT and BATFE rules
    Message 1 of 1 , Jun 15, 2009
      For those of you who do not subscribe to 'the lists' (PML and/or PGI),
      the following was posted by John Steinberg, PGI 2nd VP.

      It covers DOT and BATFE rules and regulatory enforcement changes and
      interpretations of their rules which WILL AFFECT ANYONE transporting
      product anywhere but more currently, especially those of us who are
      planning to take product to the convention this August.

      This is a must read - it points out once again how our various
      'protection agencies' view things and handle things quite differently
      and how those differences impact us all.

      In addition I will add another urging for all Iowa Hobbyists regardless
      of affiliations who don't belong yet to join the IPA and to join the PGI
      also.

      Much attention is given to the annual PGI Convention but this event, as
      wonderful as it is, remains only a tiny fraction of what the PGI is
      about and it often gets lost how important this organization is to all
      of us who love pyrotechnics - member of it or not.

      Providing your support whether it be in the form of PGI membership dues,
      donations to the Fireworks Foundation (hint-hint) or in voluntary
      service we stand a far better chance of surviving as hobbyists in mass
      numbers than by isolating ourselves.

      We are so blessed to have among the PGI ranks some of the most
      knowledgeable and dedicated hobbyists, professionals and legal experts
      in the pyro-world. This article gives a 'back-stage' glimpse at what the
      PGI does in its day-to-day operations and why it is so vitally important
      to all of us that we back the efforts of it.

      [end of shameless plugs - now please read the article thoroughly :-)]

      Mark

      -----

      Subject: [pml] You must have an ATF license to transport fireworks in
      the US
      To: pml@...

      PML list members:

      While this is only of import to those in the US, it does affect a great
      many of us. If you are a pyro in the US, please read this article about
      the rescission of previously granted hobbyist transportation exemptions
      and permissions.

      Thanks,
      John Steinberg

      Transportation of Fireworks by Hobbyists June 2009 Update: URGENT
      READING By John Steinberg

      This article has been vetted for legal accuracy and reviewed by PGI
      Attorney, Doug Mawhorr.

      If you are even thinking about bringing fireworks to the PGI, that are
      regulated as explosives by ATF, please read this article thoroughly as
      there has been a major change in rules interpretation and enforcement
      by ATF. Let me also clarify and reiterate DOT rules interpretation
      which has NOT changed.

      DOT:
      1) If you are NOT in commerce, DOT rules and regulations do NOT apply
      to you. You need not have a CDL, placards, log book, MCS 90 insurance
      certificate and $5 million in coverage, hazardous materials
      registration, etc.

      2) If you are in commerce, you need all of the above and more.

      Conclusions:

      If you are bringing your own non-commercial fireworks to the PGI for
      your own enjoyment, DOT has no issue with you and you have none with
      them. This has not changed.

      If PGI is paying you to do a display, EVEN if you are a club, you MUST
      find a qualified means to transport your pyrotechnic materials to the
      convention. This most likely means working with a display company as no
      club I know of, including the PGI, can afford to become a commercial
      transporter of display fireworks.

      ATF:

      Some history is required here:

      On May 24, 2003, the Safe Explosives Act took effect. This required an
      ATF license for ALL transportation of regulated explosives on public
      roads.

      "Public roads" means anything off your personal property.

      A User Limited ATF license will allow intrastate transportation.

      An ATF license, of any type greater than User Limited, is required for
      interstate transportation.

      In 2006, the ATF conducted an enforcement operation at the Appleton PGI
      convention. Though no material was seized and no persons were charged,
      this created a problem that we felt needed to be addressed.

      To that end, on December 11, 2006, our attorney, John Brooke, Tom
      Handel, and I met with ATF and DOT personnel at ATF HQ. Representing
      ATF at that meeting were, among others, ATF Co-Chief Counsel, Teresa
      Ficaretta, Arson and Explosives Division Explosives Industry Branch
      Programs Chief Gary Bangs, and his immediate superior, Mark Jones, the
      Deputy Division Chief.

      An agreement was arrived at, endorsed by ATF Counsel, that a member of
      a club could transport hobbyist materials to a club event under the
      club ATF license. An agreement was also reached whereby it was
      determined that travel requiring an overnight stay would still be
      interpreted as transportation and that no magazine storage would be
      required. Table of distances requirements would be in force, however,
      but cars would not count as occupied structures, so parking lots would
      have sufficed so long as the vehicle was locked. The details of and
      permissions granted under this agreement have previously been published
      in some detail and I will not reiterate those details here.

      Though we asked ATF to reduce this agreement to writing, no written
      response was ever provided to the questions we posed. These questions
      have now been answered in the June 2009 ATF Explosives Industry
      Newsletter.

      For two and a half years, this verbal agreement was honored. No other
      interpretation was offered and enforcement was consistent with the
      agreements reached in 2006 by ATF and PGI.

      DOT did not offer any changes in regulatory interpretation at this
      meeting and none were requested of DOT by PGI.

      The ATF regulation interpretation has now changed. The permissions
      previously afforded members to transport under a club license have been
      unilaterally rescinded and previous permissions granted must be
      considered as revoked.

      If you are a non-ATF-licensed hobbyist:

      1) You may continue to make and use regulated explosives for your own
      non-commercial enjoyment on your own property and must comply with
      lawful storage requirements.

      2) You may NOT transport that material to a club event on the club
      license.

      3) You may transfer your material to an ATF license holder. BUT, you
      may NOT transport the material off your property to that license
      holder. An ATF license holder may come to you, collect your material,
      create a record of acquisition, and then transport the materials to his
      magazine, logging them in properly. This is NO longer your material. The
      transfer must remain NON-COMMERCIAL. No payment for this service may be
      made by you to the license holder nor any payment made to you for the
      material. The license holder may bring this non-commercial material to
      an ATF-licensed-club event and transfer the material to the possession
      of the club. The club must create a record of acquisition. If you are a
      member of the club, with the club's permission, you may then be allowed
      to fire said material at that club event. But, the material can never
      be returned to your possession.

      >From this point forward, with NO EXCEPTIONS:

      You MUST have an ATF User Limited License for ANY intrastate (within
      your state, crossing NO state boundary lines) transportation of
      regulated explosive materials, whether in commerce or not.

      You must have an ATF license, of any type greater than User Limited,
      which is required for ANY interstate transportation of regulated
      explosives.

      Further, as if that news were not enough, you are now in transportation
      ONLY while en route and moving. Whether or not you are an ATF license
      holder, if you stop overnight, your material MUST either be placed in a
      lawful magazine or, in a locked and attended vehicle AT THE DISPLAY
      SITE.

      I was pleased that we could work out the agreement that was in force
      for the last two and a half years. I am dismayed that an agreement that
      worked so well has now been unilaterally discarded without any
      consultation with or communication to those affected, except as
      provided in the newsletter. But, that?s the way it is.

      Given the recent changes in ATF interpretation of explosives rules that
      rescind these two key allowances previously afforded hobbyists as
      published in the June Industry Newsletter, I think it would be both
      reasonable and prudent to expect an ATF enforcement action at the PGI
      convention and, perhaps, at other regional club activities. Thus, if
      you are not 100% certain you are lawfully transporting fireworks
      (non-commercial, ATF license holder) do not even think about doing so
      this year. If you can find a license holder to come collect your
      material and are willing to part with it, as described above, this is
      your only remaining option to be a non-licensed hobbyist manufacturer
      and shoot your material at club events held at sites other than on your
      property. Otherwise, your best course would be to obtain an ATF license
      and a contingency storage letter from a license holder or to establish
      proper storage on your own premises.

      Remember, a license holder may still grant you permission to store
      material in his or her magazine, so, while a license is required for
      transportation, you need not have storage on your property.

      As an example, a member of the Crackerjacks club could:

      1) obtain a user, non-limited ATF license
      2) make fireworks for his own enjoyment at the Crackerjacks club site
      3) store the material in the Crackerjacks magazines, after obtaining
      written permission to do so
      4) then collect the material and transport it, without any DOT
      constraints, to the PGI event or other event, so long as NO
      compensation is provided for your doing so (you must remain
      non-commercial)

      In closing, this is, in my opinion, bad news and certainly makes life
      more complicated, but, for all but a few hobbyists, there are still
      solutions that will allow you to continue to enjoy your hobby. Whatever
      you choose to do, please do so lawfully. If you have any questions,
      feel free to contact me by email. I will answer your questions and have
      our attorneys vet those answers for accuracy.
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