Members of the display fireworks industry should cautiously take notice, and advantage, of the recent ATF determination to issue non-expiring variances for preloading of fireworks on trucks. The notice was contained in the December 2005 edition of ATF Explosives Industry Newsletter. According to the ATF, the variance will not have an expiration date; therefore the variance is, in lawyer’s parlance, evergreen. This article discusses this newly-enacted procedure.
First, you need to apply in writing for the variance. Second, you will need to satisfy various conditions before issuance of the variance. Inexplicably, the ATF newsletter provides the reader with only “[s]ome of the conditions…” that must be met, rather than all of them. For instance, the vehicle must be immobilized by using either a standard kingpin locking device or a steering wheel locking device. Also, the vehicle must be properly placarded, and the doors to each storage compartment must be locked with a steel padlock, although the padlock does not need to be protected by a steel hood. Like explosive magazines, the area surrounding the vehicle(s) must be free of rubbish, brush and dry grass and the relevant table of distances apply. The business owner is also obligated to notify both the (ATF) Area Office and the Explosives Industry Programs Branch of any changes to one’s business operations “that affect the variance.”
The fact that the ATF listing of conditions is not exhaustive gives the ATF the ability to impose other conditions at will. As a result, the ATF could impose a further condition that may imperil one’s ability to qualify for the variance. Obviously, it would be in the industry’s best interests to be made aware of each and every condition to qualification; otherwise, you may be investing time and money to comply with the known conditions, only to learn that another condition, previously unknown, cannot be met.
The vague and ambiguous language of the change in business operations clause also presents problems. While the burden is upon the business operator to determine whether or not a change in business operations will affect the variance, no guidelines are provided. Conceivably, an ATF inspector may disagree with your determination that the change in business operations does not affect the variance. Similarly, that ATF may rely upon an immaterial change in operations as a basis to rescind the variance since no distinction has been made between a material change in operation and an immaterial change.
The variance may also be rescinded upon an ATF determination that “continuation of the approval would hinder effective administration of the Federal explosives laws.” Once again, the language is broad and ambiguous and, therefore, has the potential for abuse by the Agency.
In conclusion, obtaining a variance for continuing authority concerning preloading of trucks for temporary storage of fireworks for shows is something that every display operator may want. However, without knowing in advance the full scope of the regulations pertaining to the variance it seems that ATF may rescind the variance at will.
