I’ve read that compliance officers in various industries are in demand (e.g., financial); add the pyrotechnics to the list.

In last month’s column, we highlighted regulatory activity emanating from PHMSA. Given the volume of regulatory activity since then, there appears to be regulatory land-grab in Washington; indeed, a virtual ‘who’s who’ of federal agencies recently released, as the case may be, notices, overviews and instructions affecting pyrotechnics.

On November 8, 2011, BATFE issued a 30-day notice effectively extending, until December 8, 2011, the deadline for public comment relating to proposed agency information collection activities; it was previously published in the Federal Register on August 31, 2011 [Vol. 76, no. 169, p. 54255-56]. Since the information to be collected is intended to be used in connection with determinations relating to permit and license renewals it should impact many members of the pyrotechnics industry, especially display operators. It appears that the renewal forms issued automatically by the agency will be modified, presumably seeking more details; although the notice does not describe the actual changes contemplated. The agency does estimate that the changes will cause the average person to incur 25 minutes to adequately complete the form.

One day earlier, the BATFE released an ‘Open Letter To All Explosives Licensees and Permittees’, clarifying whether the weight of the lift charge is included in the calculation of the 40-gram threshold for aerial shells, thereby qualifying as display fireworks. After parsing the language in the regulations, 27 CFR 555, the agency drew a distinction between the function of ‘pyrotechnic composition’ and the function of lift charges. The distinction resulted in the conclusion that “[u]nless a particular lift charge contains explosives materials designed to produce visual or audible effects, the lift charge would not be a ‘pyrotechnic composition’ for purposes of the 40-gram threshold for display fireworks.” It must be emphasized that the agency’s conclusions apply only to single aerial shells, and are not applicable to multiple aerial shells packaged together in kits. In summary, the open letter does not appear to introduce any new concepts; indeed, the agency mentions that its conclusions are “consistent” with APA Standard 87-1.

The BATFE also had time to release a publication that provides a useful overview of the recordkeeping requirements for explosive permittees and limited permittees. Such individuals are required to maintain records for a minimum of 5 years, in permanent form on the business premises, relating to all acquisition and dispositions. You satisfy the ‘in permanent form’ standard by maintaining commercial records or record books. However, you have only 7 days to make the appropriate entries into the record books; alternatively, if you rely upon commercial records they need to contain all the required information. The agency also details the events that determine when a ‘special inventory’ is required to be conducted, in addition to the required ‘annual physical inventory’; all discrepancies in the DMST need to be reconciled. For ease of convenience, a sample form recording acquisitions of explosives is provided, and I recommend that you copy it and use it in the regular course of business. Logically, disposition of explosives will require the disclosure of similar information and, consequently, the same form can be modified for purposes of maintaining required records of disposition. Transactions with limited permittees require not only an executed Form 5400.4, but also the original unaltered and unexpired Intrastate Purchase of Explosives Coupon (IPEC). All disposition records are to be kept either alphabetically by permittee name, or by date, but not both methods.

Over at OSHA, it released a lengthy abstract on October 27, 2011 on the topic of compliance policy for manufacturers, storage, sale, handling, use and display of pyrotechnics (the “Instruction”). OSHA is thorough, if anything, when it comes to spreading its regulatory net to cover workplace functions. Significantly, it is expressly stated that State plans are required to implement enforcement policies that are at least as effective as those in the Instruction. We intend to write about this Instruction in detail in our next column

In conclusion, navigating through the regulatory morass requires a good library, a strong compliance officer and smart counsel; if not, some industry members may find themselves on the bumpy road to compliance.

CategoryAll Articles

© 2016 Creadore Law Firm All Rights Reserved.

Creadore Law Firm