Transportation of 1.3 product by the hobbyist...current ATF guidelines ???

[PAClark]

I have been searching the web and ATF sites looking for an answer. I thought I had read were the display fireworks hobbyist (non-commerce) transporting 1.3 product did not require special "explosives" placards, insurance, or other table of distances etc.....AS LONG AS THE WERE NOT LEAVING THE VEHICLE OVERNIGHT OR UNATTENDED. ATF definition, "A vehicle is considered ?attended? when the person in charge of the motor vehicle is alert and either on the vehicle (but not in a sleeper berth), or is within 100 feet of the vehicle and has it within his/her
unobstructed view. 49 CFR ? 397.5(d)(1)."

Can someone please link me to any current information or guideline that states differently. I have looked for hours and cannot find solid ATF guidelines. This is for the bobbyist in a NON-COMMERCE status. Here is the only example I found from a 2007 ATF guideline booklet. I am looking for the most current guidelines.

Scenario #4: A Federal explosives licensee manufactures display fireworks for both commercial and
personal (non-commercial) use. Would DOT regulate this licensee?s transportation of explosive materials
manufactured for personal, non-commercial use?
Answer: DOT regulations apply only to the transportation of hazardous materials in commerce; the
transportation of fireworks for personal use (e.g., fireworks purchased by a Federal explosives permittee
for personal use on the permittee?s property on the 4th of July) is not subject to the HMR. Because such
materials are not subject to the exemption at 18 U.S.C. ? 845(a)(1), they are subject to all ATF
requirements. Note that the transportation of fireworks by a licensed manufacturer to a trade convention
for marketing purposes is commerce; therefore, such transportation and incidental storage would be
subject to the HMR, not ATF regulations.
ATF regulations at 27 CFR ? 555.205 require, in part, that all explosive materials be stored in locked
magazines unless they are being transported to a place of storage or use by a FEL/P. In the noncommercial transportation scenario above, when the FEL/P?s vehicle comes to rest for the evening, the
explosive materials would not be considered in-transit and must comply with all explosives requirements
under the ATF storage regulations. The FEL/P would also be required to comply with all State and local
regulations regarding the storage and transportation of explosives.
All persons are required to store explosives in a manner outlined under 27 CFR, Part 555, Subpart K -
Storage, including the table of distance requirements. ATF has outlined alternate methods and
procedures for the temporary storage of display fireworks in locked and attended vehicles at explosives
magazine sites, as well as at fireworks display sites in ATF Ruling-2007-2.

[Mattp]

When you get your type54 permit.. you also get an employee possessor form... on that it states you and anyone else you named on it are allowed to transport.. I?ll se if I can find something more specific to answer your question ... but yes.. as long as it is for personal use.. you are allowed to transport to your storage or shoot site without placards

[Arclight]

Keep in mind that states can't make the rules less restrictive than federal law, but they can add additional rules. For instance, California requires placarding for any quantity of division 1.1,1.2 or 1.3 material, regardless of whether it is in commerce. This obviously triggers all of the insurance and other HAZMAT shipping requirements.


https://www.dmv.ca.gov/portal/dmv/detail/pubs/cdl_htm/sec9

Arclight

[Mattp]

OK,, i thought i had also read exactly what you described in your first sentence.. cant find that right now.. but i did find this on the DOT (phmsa) website..the same page which is also your first "scenario 4"... FDOT only regulates transport of explosives in COMMERCE..and it says IN COMMERCE many times,, that is all they need to say.. but Yes,, states have their own sets of requirements that would need to be looked on on a state by state basis.. i know your looking for a most current document.. but just because its from 2007.. that may be the most current... the atf orange book hasn't been updated since 2012

Regulation of Explosives in Transit
The Pipeline and Hazardous Materials Safety Administration (PHMSA), within the U.S. Department of
Transportation (DOT), has regulatory and civil enforcement authority over the transportation of explosive
materials in commerce. The regulatory enforcement of explosive materials while they are not being
transported falls under ATF jurisdiction. The following information is intended to help clarify when
explosive materials are subject to DOT regulation and when they are subject to ATF regulation.
DOT’s enforcement authority
DOT regulates the transportation of hazardous materials in commerce. The primary mission of the
Federal Hazardous Materials Transportation Law is “to protect [the nation] against the risks to life,
property, and the environment that are inherent in the transportation of hazardous material
in…commerce.” 49 U.S.C. ? 5101. PHMSA promotes the safe and secure transportation of hazardous
materials in commerce through the Hazardous Materials Regulations (HMR) found in 49 CFR Parts 171-
180. These include, among other things, verification of product classifications, explosives approvals,
ensuring that packaging meets rigorous performance standards, certification that hazmat employees have
received required training, and ensuring that hazard communications are adequately displayed and fully
support the needs of emergency responders. The Federal Motor Carrier Safety Administration’s
(FMCSA) regulations regarding the transportation of hazardous materials are in 49 CFR Part 397 and
include the attendance and surveillance of motor vehicles, routing, parking, and vehicle safety and
maintenance. As specified under 18 U.S.C. ? 845(a)(1), aspects of transportation that are regulated by
DOT or the Department of Homeland Security (DHS) that pertain to safety or security are not regulated by
ATF.

[Ctpyro180]

Its a DOT (PHMSA) issue ...not a BATFE issue...and are you transporting in commerce (For profit) or not...

But double check with your local DOT or DMV truck division on each states requirements on transporting explosives...

Its a PHMSA issue during transportation...

Its a BATFE issue where you are going to store it....

[PAClark]

OK,, i thought i had also read exactly what you described in your first sentence.. cant find that right now.. but i did find this on the DOT (phmsa) website..the same page which is also your first "scenario 4"... FDOT only regulates transport of explosives in COMMERCE..and it says IN COMMERCE many times,, that is all they need to say.. but Yes,, states have their own sets of requirements that would need to be looked on on a state by state basis.. i know your looking for a most current document.. but just because its from 2007.. that may be the most current... the atf orange book hasn't been updated since 2012

Regulation of Explosives in Transit
The Pipeline and Hazardous Materials Safety Administration (PHMSA), within the U.S. Department of
Transportation (DOT), has regulatory and civil enforcement authority over the transportation of explosive
materials in commerce. The regulatory enforcement of explosive materials while they are not being
transported falls under ATF jurisdiction. The following information is intended to help clarify when
explosive materials are subject to DOT regulation and when they are subject to ATF regulation.
DOT’s enforcement authority
DOT regulates the transportation of hazardous materials in commerce. The primary mission of the
Federal Hazardous Materials Transportation Law is “to protect [the nation] against the risks to life,
property, and the environment that are inherent in the transportation of hazardous material
in…commerce.” 49 U.S.C. ? 5101. PHMSA promotes the safe and secure transportation of hazardous
materials in commerce through the Hazardous Materials Regulations (HMR) found in 49 CFR Parts 171-
180. These include, among other things, verification of product classifications, explosives approvals,
ensuring that packaging meets rigorous performance standards, certification that hazmat employees have
received required training, and ensuring that hazard communications are adequately displayed and fully
support the needs of emergency responders. The Federal Motor Carrier Safety Administration’s
(FMCSA) regulations regarding the transportation of hazardous materials are in 49 CFR Part 397 and
include the attendance and surveillance of motor vehicles, routing, parking, and vehicle safety and
maintenance. As specified under 18 U.S.C. ? 845(a)(1), aspects of transportation that are regulated by
DOT or the Department of Homeland Security (DHS) that pertain to safety or security are not regulated by
ATF.

I think we agree here that the key words here are "in commerce". The transporting 1.3 product for personal use would not fall under the "in commerce" category. Yes, I understand the state would have possibly more restrictive criteria as you and Arclight commented on, and I'll have to look into mine in particular.

Thank you for the extra research!

[displayfireworks1]

The attorneys for the Pyrotechnic Guild International answered this question . It's on their website somewhere. You have all the members transporting their fireworks creations to the annual conventions. An attorney told me if you unnecessarily placard a vehicle when not required you can be in trouble for that also
So the thinking to do it anyway to play it safe may be wrong also.

[Arclight]

The attorneys for the Pyrotechnic Guild International answered this question . It's on their website somewhere. You have all the members transporting their fireworks creations to the annual conventions. An attorney told me if you unnecessarily placard a vehicle when not required you can be in trouble for that also
So the thinking to do it anyway to play it safe may be wrong also.

I believe you are correct on that. The key word is "placarded" which is what triggers the need for a CDL with HAZMAT endorsement, PHMSA and state permits, bill of lading, drug testing and truck inspection, approved route plan and $5M in motor carrier insurance.

If you are driving an exempt quantity but placarded anyway, you should be able to produce all of the above or expect the possibility of anything from a local citation to a $25K fine. The assumption is that you must be carrying something that requires placards if you are placarded.

That being said, showing that your load should be exempt might get your case dismissed or a warning if the Highway Patrol officer knows the law, but I would NOT count on that, especially since most police and fire are only vaguely aware of their state's explosives laws. It probably comes down to how your state words the law ("placarded" or "requiring placards") and that's the sort of thing you ask a lawyer.

In my state, a call to the Highway Patrol got me transferred to their "Commercial Enforcement Specialist" who works at the local port of entry. He was very knowledgeable and told me exactly what I could transport as an individual.

Arclight

[PAClark]

I believe you are correct on that. The key word is "placarded" which is what triggers the need for a CDL with HAZMAT endorsement, PHMSA and state permits, bill of lading, drug testing and truck inspection, approved route plan and $5M in motor carrier insurance.

If you are driving an exempt quantity but placarded anyway, you should be able to produce all of the above or expect the possibility of anything from a local citation to a $25K fine. The assumption is that you must be carrying something that requires placards if you are placarded.

That being said, showing that your load should be exempt might get your case dismissed or a warning if the Highway Patrol officer knows the law, but I would NOT count on that, especially since most police and fire are only vaguely aware of their state's explosives laws. It probably comes down to how your state words the law ("placarded" or "requiring placards") and that's the sort of thing you ask a lawyer.

In my state, a call to the Highway Patrol got me transferred to their "Commercial Enforcement Specialist" who works at the local port of entry. He was very knowledgeable and told me exactly what I could transport as an individual.

Arclight

I would NOT want to placard a vehicle in my case for transport of personal display fireworks being used by a hobbyist. That is definitely not my intention. I am looking to have policy/regulation paperwork in hand/in vehicle in the event that I was stopped. Having some "proof" that you are legally transporting product as a hobbyist is what my intention is.

[Arclight]

I would NOT want to placard a vehicle in my case for transport of personal display fireworks being used by a hobbyist. That is definitely not my intention. I am looking to have policy/regulation paperwork in hand/in vehicle in the event that I was stopped. Having some "proof" that you are legally transporting product as a hobbyist is what my intention is.

I'd start with your state's website. Since trucking is so universal, they might have a brochure or an on-line guide that's like a "what you need to know" guide for truckers. Otherwise, you'll have to start looking up the law sections and printing them out.

[PAClark]

OK--- after fishing for the regs, I have something I can print out and have in hand. Here is a letter and also the regulation it refers to with the key words being non-commercial purposes. Sorry for any confusion, but I just want to stay within legal boundaries as I enter the field of 1.3.

Here is a copy of the letter dated on the PHMSA website 11 Feb, 2016 It refers to the regulation 171.1(d)(6), 171.8, which I put a hyperlink to here -- https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=1&ty=HTML&h=L&mc=true&=PART&n=pt49.1.171#se49.2.171_11


Interpretation Response #15-0106

Below is the interpretation response detail and a list of regulations sections applicable to this response.

Interpretation Response Details
Response Publish Date: 02-11-2016
Individual Name: Mr. Daniel Zirzow
Location state: OH Country: US

View the Interpretation Document


Response text:
February 11, 2016

Mr. Daniel Zirzow
5287 Broad Blvd.
N. Ridgeville, OH 44039

Ref No.: 15-0106

Dear Mr. Zirzow:

This responds to your email request for clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the transportation of display fireworks. Your email describes three different transportation scenarios and you ask whether they are considered in commerce for the purposes of the HMR.

Scenario 1: A licensed individual transports Division 1.3 display fireworks to a private residential property, such as a farm, for non-commercial purposes. You ask whether such transportation is subject to the HMR.

Response 1: The answer is no. As provided by ? 171.1(d)(6), the transportation of a hazardous material by an individual for non-commercial purposes in a private motor vehicle, including a leased or rented motor vehicle, is not subject to the HMR.

Scenario 2: A commercial entity, such as a restaurant or winery, compensates a fireworks club monetarily for the staging of a fireworks display on its property. The fireworks club does not compensate the employee who provides the display. Further, the restaurant or winery does not charge admission to view the display.

If a fireworks club or organization stages a fireworks display at a commercial establishment, is transportation of the display considered in commerce for the purposes of the HMR? If so, does transportation of the fireworks display to the property require a driver with a Hazardous Materials Endorsement on a Commercial Driver?s License (CDL)? Would it matter if the commercial establishment compensated a club member individually for the display or the fireworks club directly?

Response 2: The answer is yes, the scenario you describe is considered in commerce for the purposes of the HMR. Historically, PHMSA interprets ?in commerce? to mean trade or transportation in furtherance of a commercial enterprise. This interpretation is based in part on the Federal hazmat law's definition of ?person? as including ?a government, Indian tribe, or authority of a government or tribe that (i) offers hazardous material for transportation in commerce; (ii) transports hazardous material to further a commercial enterprise; or (iii) designs, manufactures, fabricates, inspects, marks, maintains, reconditions, repairs, or tests a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous materials in commerce?? See 49 U.S.C. 5102(9); see also 49 CFR ? 171.8.

Because any amount of a Division 1.3 explosive on a transport vehicle requires placarding, a driver is required to have a Hazardous Materials Endorsement on his or her CDL in accordance with the Federal Motor Carrier Safety Regulations at 49 CFR 383.93. Lastly, the type and level of monetary compensation and to whom it is rendered for services performed in this scenario is irrelevant as the transportation of the display fireworks is ultimately for the furtherance of a business enterprise and not solely for non-commercial purposes.

Scenario 3: A commercial entity such as a sporting event or an RV park/campground compensates a fireworks club monetarily (at cost) for the staging of a fireworks display on its property. The fireworks club does not compensate the employee who stages the display. Further, the sporting event or an RV park/campground may charge admission to view the display.

Under this scenario, if a fireworks club or organization stages a fireworks display at a commercial establishment, is transportation of the display considered in commerce for the purposes of the HMR? If so, does transportation of the fireworks display to the property require a driver with a Hazardous Materials Endorsement on a CDL?

Response 3: See the response for Scenario 2.

I hope this information is helpful. Please contact us if we can be of further assistance.

Sincerely,

T. Glenn Foster
Chief, Regulatory Review and Reinvention Branch
Standards and Rulemaking Division

171.1(d)(6), 171.8,

[Rick_In_Tampa]

Sounds to me like the answer is - If money changes hands anywhere in the process, then you have to be placarded, insured, CDL, etc.

[displayfireworks1]

People that try to indirectly be in the fireworks display business think they can do a"work around" the in commerce regulations and still sell a fireworks displays while pretending to be a hobbyist. I tell people that want to be in the 1.3 display business, the first thing you want to do before you start is price transportation insurance for explosives. Then proceed from there.