Thursday, November 25, 2010

New ATF rules affecting PGI and club events

Here is the officially approved PGI stance as it will be published in the next Bulletin. Please feel free to circulate this to any other lists, discussion groups, or other sites to which you subscribe. May as well get the word, bad though it is, out to everyone.

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.

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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