Confessions of a Fireworks Man

CPSC’s Case Against Firework Making: The Defense Speaks

The Art of Making Fireworks

Here’s another one of Tracey Birch’s wonderful fireworks photos (click on it for a larger image).  Enjoy.  Thanks Tracey.  Next time, I will start to talk about how you can see and create the same kind of beauty, for your own self.

The CPSC vs. Fireworks Makers, Continued...

Here’s one more piece of info on the CPSC case against a pyro supplies vendor.  Although the final outcome will not be known for a little while longer, this is just about all that can be said about this case right now.  As more information becomes available, I will post it here for you.

Q:  When you say Firefox “lost” the recent case, what does that mean?
A:  We asked Doug Mawhorr, Firefox’s attorney, to explain that.  Here’s what he said:
 
“It is possible to have a factual/liability phase of a lawsuit decided without having a trial.  This is done through an MSJ [motion for summary judgment].  In an MSJ, the moving party (the party that files the MSJ) states that there are no material issues of fact in dispute and that as a matter of law they are entitled to judgment.  An MSJ is available in all civil cases at both the state and federal levels.  It is rarely successful at the state level, but is much more frequently granted at the federal level.
 
In this case the gov't filed an MSJ on all its issues.  Firefox also filed an MSJ on the issue of CPSC jurisdiction.  Firefox's MSJ focused on two key jurisdictional matters, 1) that Congress did not intend the CPSA to give the CPSC the authority to regulate in this manner, and 2) that the ATFE already regulates the fireworks devices that the CPSC claims are banned hazardous substances.  The court denied Firefox's MSJ and granted the gov't MSJ.  The court found that the CPSC does have the jurisdiction to regulate these "banned hazardous substances" and that the ATFE regulations do not specifically prohibit the CPSC from exercising its authority over the "banned hazardous substances."  The court also found that Firefox did violate the FHSA with some of its sales of chemicals and firework components.  Additionally, the court found that Firefox also violated certain portions of the HazMat transport laws.

However, the court did not decide what the resolution to the case would be.  Instead, the court has ordered that the gov't and Firefox attempt to negotiate a resolution.  The court was concerned about balancing the needs of Firefox to operate its business and public safety.  The court stated that it would be in both parties’ interests to reach an agreement.  The court gave the parties until 1/15/07 to try and reach an agreement and report back to the court.  It is possible that the court would give a little more time if both parties want and agree that more time would lead to an agreement.  If not, the court will set a date to receive information and testimony as to what the best resolution will be keeping in mind the factors it must balance.”

Douglas K. Mawhorr
Brooke*Mawhorr, P.C.
112 East Gilbert St.
Muncie, IN 47305
(765) 741-1375
Fax: (765) 288-7763

Brooke*Mawhorr are specialists in fireworks cases.  If you are ever unfortunate enough to get into ANY kind of a fireworks legal pickle, I recommend you call them first.  They work on cases all over the US.  Probably better to talk to these guys first, before you hire your local yokel, who knows nothing of fireworks law.  The first call’s free.  (Doug, don’t forget the commission you promised me.)

Cautionary Note to Boomer Makers

Apparently, some people hearing about this case have taken the CPSC news to think that they should call us and stock up on things that we haven’t been willing to sell them before.  One guy called, attempted to order enough dark aluminum and perc. to make a thousand M80s and was turned down by one of my people, here.  We politely explained that it isn’t legal for us to sell those things to him.

“I know,” he said, “you have to say that to me,” he winked. “But, really, what do I have to do to get this stuff from you? ”   (Simple, 'get an ATF license.') "Can I just order one thing today, another thing tomorrow, and so on?"  No.  "Well, I just want to make a few M80s for me and brother in law.  He loves 'em.  How about just selling me the dark aluminum?"  No, no, Hell No!

Meanwhile our web site server has been smoking as it continues to block record numbers of people trying to M80 kits and components.

Hmmm, somebody must notta heard.  Once again, here it is, lemme say it really loud:
 
You cannot buy kits and/or components for making boomers from Skylighter.  We will turn your order down, and mark you as a suspected M80 maker.

If you turned down 3 times, you will NEVER be able to buy ANYTHING from Skylighter--EVER AGAIN.  Nothing.  Zip. Nada.  Never.  Do you really want that?

If you tell us you are making M80s, aerial salutes, or anything that goes bang, we have to write that down, you will be marked as a suspected M80 maker, and will never be able to buy anything which could be used in making M80s--EVER.  Think about what that might mean to you.

I sincerely hope this is the last time I have to post any of this unpleasantness.  I know nobody enjoys reading it.  God knows, I don’t like writing it.  But for your sake, and the sake of all of us who enjoy making fireworks, please either get an ATF license (easier than you might think), or at least stop thinking your boomer order will go through--that "it must be them other folks he's talking to."

Harry Gilliam
Chief Cook & Bottle Washer

More on the CPSC's Campaign Against Fireworks Makers

The Art of Making Fireworks

This is one of Tracey Birch's excellent fireworks photographs that she has offered to share with us all.  Click on it to see a larger image.  Tracey not only takes gorgeous fireworks pictures, she's also a highly accomplished, award winning fireworks maker.  In her own words:

"I take [my pictures] so people can see and enjoy the memories or spark the imagination. I like the idea of showing off what we really do to those who think we're just about making noise. I have an album I share with ATF agents when they come to do inspections as well as local fire and police whenever I get the chance. Invariably they are amazed and awed at what we really do.  Maybe this is one way to help turn the tide and get more public awareness and support."

Thanks, Tracey.

The CPSC vs. Fireworks Makers, Continued...

Many people have called or written and asked about the CPSC vs. Firefox case and posed some good questions.  Here are a few.

Q:  Is Firefox out of business? 
A:  Absolutely not.  Firefox is still very much alive.  And, as I pointed out in my 12/22/2006 posting, the judge has explicitly stated that he does not want the injunction against Firefox to be so strict that they are forced out of business by it either.

Q:  Can I buy more potassium perchlorate and aluminum and stock up?
A:  There are strict limits on the amount of flash grade aluminum you can buy per year. Currently, that is 1 pound per order, 2 pounds per 12 month period.  We also refuse many, many orders when it appears that what you want to make is primarily flash powder devices.  So, the answer is, that you might be able buy more perchlorate and aluminum.  But not if that is the main thing you either want or have tried to buy in the past.  If you are a legitimate rocket or shell maker, and your order history supports that, then you can probably buy more of those two chemicals.

Q:  What is the CPSC doing to Skylighter?
A:  Nothing directly, at least not that we know of.  But, we do know that agents of the CPSC have recently asked Skylighter customers to make purchases of items which could be used to make M80’s or similar illegal devices.  This is basically an attempt to set up a “sting” against Skylighter to induce us to violate the Federal Hazardous Substances Act.  I have no reason to believe they will not continue to try and create some reason to bring charges against us.  After all, the CPSC has been involved in legal action against these pyro suppliers in the past 3 years:  Pyrotek, Iowa Pyro, United Nuclear, and Firefox.   The first two were forced to close their businesses.

The CPSC has also successfully coerced pyrotechnic chemical distributors to stop selling to retail suppliers like us.  This has had the effect of making it more inconvenient and expensive to acquire new inventory.  Some of our prices have risen as a result, and we have experienced some temporary inventory shortages.

Using customer lists obtained in legal actions against the pyro suppliers, CPSC, through the US Department of Justice has sent threatening letters to hundreds, perhaps thousands of US citizens.  These Big-Brother, heavy-handy threatening form letters have falsely accused their recipients of violating US law by making fireworks.  There is no US law against your making fireworks for your own use. 

Q:  Why is the CPSC going after the pyrotechnic supplies vendors?
A:   Jim Joholske, of CPSC’s Office of Compliance, told me in a personal visit to Skylighter 2 years ago that CPSC is seeking to shut down the 2nd and 3rd tier, smaller M80 manufacturers.  Not the large scale manufacturers that ATF has prosecuted, but individuals who make a few or a few hundred “boomers” for sale or to give to their friends.  That is the factual part of what we know. 

My conjecture goes a bit further.  I believe that the CPSC feels that shutting down the vendors of hobby fireworks chemicals and supplies is the most efficient way to stop the small-scale illicit manufacture and trade in illegal exploding devices.  If that is their belief, they are almost certainly wrong.  While CPSC may be able to shut down all the legitimate suppliers of pyrotechnic chemicals who operate out in the open, they will never be able to succeed in shutting off the supply of chemicals used in making illegal devices.  There are simply too many other sources of supply (under and above-ground) for CPSC to ever stop them all.

Q:  Then why are they bothering to go to all this trouble?
A:  That is a very good question, and one which I cannot answer. Particularly when you consider that the number of accidents and fatalities caused by illegal M80 devices is tiny.  Numerous statistics cited elsewhere, including the CPSC’s own reports, show that overall fireworks accidents are steadily declining.  And National Geographic, in an article in its August 2006 issue on "how we die", graphically illustrated that fireworks are the least likely way any of us will die.  So, clearly there are far larger problems to tackle with regard to public safety.  I'd be interested in hearing your theories on why this particular industry has been singled out.

More on this the next time. 

Harry Gilliam  --  Chief Cook & Bottle Washer
Skylighter, Inc.
http://www.skylighter.com

Firefox Lost Its CPSC Case: What That Means to You

Welcome to Skylighter’s new Fireworks blog.

If you are a fireworks maker, this is the most important message I have ever sent.  Please read it right away and very carefully.  If you make fireworks, whether ATF licensed or not, this absolutely, positively impacts you. 

THE FIREFOX CASE HAS BEEN LOST
On December 6th, 2006 Firefox lost the case brought against it by the CPSC.  What will follow is an injunction against Firefox. In his ruling, the judge directed both parties to negotiate a mutually acceptable plan for enforcement of the regulations and applicable law which CPSC has authority to enforce.  Both sides are currently engaged in those negotiations.

What that means is that CPSC and Firefox must reach an agreement on which chemicals and supplies are to be limited in sales to non-ATF license holders, and what quantities will be allowed to each purchaser

The judge indicated that he does not want to see Firefox be forced out of business.  The judge has instructed both the government and Firefox that if they fail to reach an agreement, he will make the decision.

HOW WILL THE FIREFOX CASE IMPACT YOU PERSONALLY?
The government is asking that the following items be restricted in sales to non-ATF license holders:

• Oxidizers:  No more than one pound per customer per year
• Fuels:  None, unless they are larger than 100 mesh particle size
• Tubes:  None, unless they are 10 inches or longer
• Fuse:  No more than 25 feet per customer per year

“Oxidizers” are defined as:  ammonium nitrate, potassium chlorate, potassium perchlorate, potassium nitrate, sodium chlorate, sodium perchlorate, sodium nitrate, barium nitrate, strontium nitrate, potassium permanganate.

“Fuels” are defined as:  aluminum, aluminum alloys, magnesium, magnesium-aluminum alloys, antimony sulfide or trisulfide, potassium benzoate, sodium benzoate, sodium salicylate, sulfur, titanium, zinc, zirconium, or zirconium hydride.

It’s too soon to know what the final restrictions will be.  But there WILL be restrictions.  And it is possible that some or all of those restrictions will be in effect as early as next month, January 2007.

If you need anything on the list above to continue making your kind of fireworks, get it now.  Do not wait.  Period.  This is not a maybe.  This is not merely a possibility.  There WILL be restrictions.

A SPECIAL NOTE TO M80 MAKERS
If you want to try buying items for making M80’s or the like, please take your business elsewhere.  Don’t go to Skylighter or Firefox.

Orders for anything appearing to be used for making illegal flash devices will be rejected.  While I hate to end this gloomy first blog posting on yet another negative note, I want to point out that M80 makers and sellers are the primary reason we face this governmental restriction today.

Harry Gilliam  --  Chief Cook & Bottle Washer
Skylighter, Inc.
http://www.skylighter.com