May 10, 2005
Amateur Pyrotechnists, PGI Members, Pyrotechnic Hobbyists and Other Interested Persons
RE: Department of Justice Letter
Fellow Pyrotechnic Enthusiasts:
It has come to my attention that the United States Department of Justice ("DOJ"), Office of Consumer Litigation, have recently sent letters ("Notification Letter") to numerous individuals regarding the selling, possession and business of manufacturing explosives. The purpose of my letter is to explain the DOJ's intent in distribution of the Notification Letter and to explain what the Notification Letter is really stating. The relationship between the DOJ and other federal agencies is simply one of attorney and client. The DOJ is the duly appointed attorney for government agencies like the Bureau of Alcohol, Tobacco, Firearms and Explosives
("ATFE") Consumer Product Safety Commission ("CPSC"), and the Environmental Protection Agency ("EPA") In other words, the DOJ represents the legal interests of various government agencies like the CPSC. The DOJ is the lawyer for the CPSC.
In explaining the letter, I will break the letter down by paragraph. There are three paragraphs to the letter, an introductory paragraph, the main body paragraph and a closing paragraph. After each paragraph explanation, I will comment on the paragraph and the information contained in it.
The introductory paragraph mainly informs the recipient/reader of the two main federal statutes which gives the CPSC and DOJ the authority to regulate various types of explosives. This paragraph also states that the Government (the DOJ, CPSC and other federal agencies) is investigating the illegal manufacture, distribution and sale of "illegal fireworks."
COMMENTS: As you are aware or should be aware, the Government is always investigating the illegal manufacture, sale and distribution of "illegal fireworks" and explosives. That is one of the primary purposes of the ATFE and the CPSC. 18 USC § 1841 refers to the Safe Explosives Act ("SEA") and 15 USC § 1261 is the Federal Hazardous Substance Act ("FHSA”) The ATFE is responsible for enforcement of the SEA. The CPSC is responsible for the enforcement of the FHSA. Both agencies have passed regulations for their enforcement of the federal statutes.
The main body paragraph states that the recipient's name was found among the invoices and shipping records of "various entities" that the Government has been and is investigating. The Government was/is investigating these entities for selling illegal fireworks, kits and/or components to make illegal fireworks. The paragraph then continues to "notify" the recipient that it is a federal crime to engage in the business of manufacturing or dealing in explosives without the appropriate ATFE license. The paragraph also notifies the recipient that it is a crime to introduce into interstate commerce banned hazardous substances and/or the components of banned hazardous substances. The paragraph closes by explaining that certain types of fireworks are banned by the SEA and the FHSA. The letter indicates that large reloadable tube devices, aerial bombs improperly labeled bird scare devices or pest control devices, cherry bombs, M-80's and other large flash powder devices are illegal pursuant to the SEA and the FHSA.
COMMENTS: What is most important about this paragraph is what it DOES NOT STATE. The main body paragraph does not state the following:
1. The ATFE does not regulate or control any explosives manufactured for and used by an individual for their own use and enjoyment, except for the storage of those items; 2. The CPSC only regulates consumer fireworks and those illegal fireworks put into the interstate stream of commerce; 3, The CPSC can not regulate an item which is manufactured by an individual for their own personal use; and, 4. The recipient is NOT ACCUSED of violating any of the federal statues discussed in the letter.
If you are involved in any pyrotechnic endeavors, you should know that the ATFE does not regulate the personal manufacture and use of explosives. In other words, if you are not in the business of explosives, the ATFE does not regulate your activities. But, the ATFE does regulate the storage of ALL explosives, whether it is for business or personal use, The CPSC is given specific congressional authority to regulate consumer fireworks. Consumer fireworks are banned hazardous substances or illegal fireworks unless they meet very specific standards and limitations issued by the CPSC. If the consumer fireworks meet the standards and limitations, then they are allowed to be sold, transferred and used within the United States. Further, if the consumer fireworks never enter into "interstate commerce," the CPSC does not gain authority over them. Finally, the CPSC does not have authority over display fireworks. Congress gave the regulatory authority over display fireworks to the ATFE. No where in this paragraph nor the other paragraphs of the letter is the recipient accused of violating any federal statute or regulation. There is absolutely nothing in the letter to indicate that the recipient has done anything wrong. At most there is a suggestion made that the recipient is loosely linked to an entity that is being investigated. The entity being investigated mayor may not have violated the federal statutes referenced in the letter. It is not clear by the letter that the "various entities" actually did anything wrong.
The closing paragraph merely states that numerous individuals have been prosecuted for violating the SEA and FHSA. The paragraph continues stating the Government will pursue its investigations and that the Government will prosecute those that they believe are violating the federal statutes. The paragraph closes with the alleged goal of the Government, reducing injuries caused by illegal fireworks, and states that it hopes individuals whom the Government believes have bought illegal fireworks and/ or kits in the past, will no longer do so.
Comment: This paragraph is a thinly veiled threat to the recipient that they could come under investigation for their loose link to the "various entities" already under investigation. The "goal" expressed in this paragraph is legitimate, but it is not the only goal of this letter. This letter is also being sent to:
1. Warn potential violators of the federal statutes that the Government is aware of them; 2. Intimidate the legitimate manufacturers and users of personally made pyrotechnics ill an attempt to stop or reduce their legal activities; and, 3. Let the Hobbyist Pyrotechnic Industry know that the Government is trolling the waters in an attempt to "catch" alleged violators of the federal statutes.
I view the entire letter as an attempt to chill the legal and legitimate activities of pyro hobbyists. The ATFE will not interfere with the hobbyists. This frustrates the CPSC and they are doing what they can to deter what it views as "illegal activity." The CPSC views "consumer"
possession of any fireworks not in compliance with their regulations as "illegal fireworks" and "banned hazardous substances." The CPSC is further frustrated by the fact that their regulatory authority, while vast, is not limitless. The CPSC is trying to expand its authority to cover explosives and fireworks it congressionally does not have. The CPSC is also attempting to obtain judicial legitimacy for the expansion by taking cases to court and having injunctions issued. The CPSC is attempting an end run around the congressionally mandated limits on its authority
If you receive a letter from the DOJ, Office of Consumer Litigation as described above, do not panic. You are not being accused of anything. It is an attempt to chill your pyrotechnic activities. As long as you are making and using your pyrotechnics for only yourself and storing your pyrotechnics properly, you are not in violation of the federal law. There is very little if anything the federal government can do. However, if you are making pyrotechnics and attempting to profit from them (i.e. selling them, giving them to others, using them in paying display shows, etc.) you could be in violations of federal statutes. Also, please be advised that compliance with federal statutes does not mean you are in compliance with local or state statutes or regulations. Any good pyro hobbyist must be informed of, aware of and in compliance with his local and state pyrotechnic, explosive and/or fireworks laws and regulations. You may be O.K. with the feds, but they will turn you over to locals if they believe you are violating local statutes or regulations.
If anyone has any questions regarding correspondence received from a government entity (local, state or federal), it is always best to seek the advice of an attorney or regulator. You should always have your questions answered and fully understand your rights and obligations. I hope this letter explains the content of the Notification Letters the DOJ is sending out. If you still have further questions, I can be reached at the address and telephone listed at the bottom of the first page.
Douglas K. Mawhorr
Attorney at Law
PO Box 1071
112 E. Gilbert St.
Muncie, IN 47308-1071