Discussion:
Firefox/CPSC Case Development
(too old to reply)
l***@gmail.com
2006-12-14 02:24:47 UTC
Permalink
This message is posted from Tom Handle regarding the
status of the CPSC litigation against Firefox. - Dave
---

In the Firefox/CPSC case, on December 6, 2006, the judge issued
a 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.

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 set a deadline of January 15, 2007 to present the
agreed-upon compromise to him. It is possible that this deadline
could be extended an additional 30 to 90 days if need be.

The judge indicated that he does not want to see Firefox 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. The judge has stated explicitly that it is in the
parties' best interests to reach a compromise agreement --
meaning that it is in both parties' mutual interests for them to
decide what to do rather than the judge.

What does this mean for our hobby?

1) Whatever we get, it will almost certainly be better than what
the CPSC wanted, but less than what Firefox would want. Given
that the judge has indicated his willingness to consider lesser
restrictions than CPSC desired to impose, we are hopeful. But
it is too soon to know the final outcome. And there is a very real
possibility of further expensive and time-consuming legal action.
In the short-term, we must prepare thoroughly for the upcoming
negotiations, including creative approaches that might satisfy
CPSC's desire to ensure that pyrotechnic materials are only used
in an acceptable manner.

2) The fireworks hobby community will have input, either via
negotiations with CPSC or via submission to the judge, in the
final outcome.

3) If a mutually acceptable negotiation is reached, our hobby will
continue. But, whether a negotiated settlement is reached or the
judge himself decides, it is inevitable that quantities of some
chemicals available to non-ATF licensed buyers will be reduced.

What do we need to do next?

1) The case is not over. We still have huge expenses ahead as
we enter into negotiations. Please make a contribution to the
Fireworks Foundation. We do not want to falter now that we are
entering the home stretch. We absolutely need more funding.

2) If you know federally elected or appointed officials with
potential influence at or upon CPSC, please contact John
Steinberg, Tom Handel, or Harry Gilliam immediately.
Contact information below.

3) Please join the Fireworks Alliance if you have not already done
so. This will be the basis of our future efforts as we continue our
long range goals of working to develop a better regulatory climate
for our hobby. Go to http://www.fireworksalliance.com and sign up
there. It's free.

The PGI Board of Directors, the Board of the Fireworks Alliance,
and the Trustees of the Fireworks Foundation want to thank
each and every one of you who has contributed time, money
or effort to this matter so far. You have made it possible for
the Firefox case to get this far. Although the case is not over
yet, and there is still much legal work to be done on it, we
want you to know that you have truly made a difference to the
fireworks hobby. Without the strong showing we made enabled
by the funding you provided to defend this matter aggressively,
FireFox would have been compelled to enter into an agreement,
crafted unilaterally by the CPSC, that would have effectively
ended their business and quite possibly our hobby years ago.

Thank you again, and, please, send those checks and PayPal
donations to the Fireworks Foundation today. After all, couldn't you
use one more tax deduction in 2006?

Fireworks Foundation:

Make your check payable to: "The Fireworks Foundation"

Mail your checks to:

Michael Swisher, Treasurer
The Fireworks Foundation
14511 Olinda Boulevard, North
Stillwater, Minnesota 55082

If you have political contacts, please get in touch with:

John Steinberg: ***@aol.com
Tom Handel: ***@bellatlantic.net
Harry Gilliam: ***@skylighter.com

Join The Fireworks Alliance. It's free:
http://www.fireworksalliance.org
f***@cableone.net
2006-12-14 04:30:23 UTC
Permalink
Ken,

Thanks very much for posting this information.

I find myself somewhat confused though by the judge's instruction that
includes "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."

Isn't the CPSC's authority to limit or prohibit the sale of certain
chemicals to certain individuals the very contentious center of the
argument presented to the court? If the CPSC has, in fact, no legal
authority to control chemical sales, how does one then craft a mutually
acceptable agreement that respects a non-existent authority? If the
CPSC does have such authority, then why is this civil action necessary?


Perhaps I've missed something along the way (always a possibility) but
it seems to me the CPSC instituted this action as a way of assuming an
authority that it was never granted.

Any comments are welcome here.

Tom C.
Post by l***@gmail.com
This message is posted from Tom Handle regarding the
status of the CPSC litigation against Firefox. - Dave
---
In the Firefox/CPSC case, on December 6, 2006, the judge issued
a 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.
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 set a deadline of January 15, 2007 to present the
agreed-upon compromise to him. It is possible that this deadline
could be extended an additional 30 to 90 days if need be.
The judge indicated that he does not want to see Firefox 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. The judge has stated explicitly that it is in the
parties' best interests to reach a compromise agreement --
meaning that it is in both parties' mutual interests for them to
decide what to do rather than the judge.
What does this mean for our hobby?
1) Whatever we get, it will almost certainly be better than what
the CPSC wanted, but less than what Firefox would want. Given
that the judge has indicated his willingness to consider lesser
restrictions than CPSC desired to impose, we are hopeful. But
it is too soon to know the final outcome. And there is a very real
possibility of further expensive and time-consuming legal action.
In the short-term, we must prepare thoroughly for the upcoming
negotiations, including creative approaches that might satisfy
CPSC's desire to ensure that pyrotechnic materials are only used
in an acceptable manner.
2) The fireworks hobby community will have input, either via
negotiations with CPSC or via submission to the judge, in the
final outcome.
3) If a mutually acceptable negotiation is reached, our hobby will
continue. But, whether a negotiated settlement is reached or the
judge himself decides, it is inevitable that quantities of some
chemicals available to non-ATF licensed buyers will be reduced.
What do we need to do next?
1) The case is not over. We still have huge expenses ahead as
we enter into negotiations. Please make a contribution to the
Fireworks Foundation. We do not want to falter now that we are
entering the home stretch. We absolutely need more funding.
2) If you know federally elected or appointed officials with
potential influence at or upon CPSC, please contact John
Steinberg, Tom Handel, or Harry Gilliam immediately.
Contact information below.
3) Please join the Fireworks Alliance if you have not already done
so. This will be the basis of our future efforts as we continue our
long range goals of working to develop a better regulatory climate
for our hobby. Go to http://www.fireworksalliance.com and sign up
there. It's free.
The PGI Board of Directors, the Board of the Fireworks Alliance,
and the Trustees of the Fireworks Foundation want to thank
each and every one of you who has contributed time, money
or effort to this matter so far. You have made it possible for
the Firefox case to get this far. Although the case is not over
yet, and there is still much legal work to be done on it, we
want you to know that you have truly made a difference to the
fireworks hobby. Without the strong showing we made enabled
by the funding you provided to defend this matter aggressively,
FireFox would have been compelled to enter into an agreement,
crafted unilaterally by the CPSC, that would have effectively
ended their business and quite possibly our hobby years ago.
Thank you again, and, please, send those checks and PayPal
donations to the Fireworks Foundation today. After all, couldn't you
use one more tax deduction in 2006?
Make your check payable to: "The Fireworks Foundation"
Michael Swisher, Treasurer
The Fireworks Foundation
14511 Olinda Boulevard, North
Stillwater, Minnesota 55082
http://www.fireworksalliance.org
John Reilly
2006-12-14 05:12:17 UTC
Permalink
Post by f***@cableone.net
Ken,
Thanks very much for posting this information.
I find myself somewhat confused though by the judge's instruction that
includes "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."
Isn't the CPSC's authority to limit or prohibit the sale of certain
chemicals to certain individuals the very contentious center of the
argument presented to the court? If the CPSC has, in fact, no legal
authority to control chemical sales, how does one then craft a mutually
acceptable agreement that respects a non-existent authority? If the
CPSC does have such authority, then why is this civil action necessary?
Perhaps I've missed something along the way (always a possibility) but
it seems to me the CPSC instituted this action as a way of assuming an
authority that it was never granted.
Any comments are welcome here.
Tom C.
I, too, appreciate the update Ken and yet like Tom has posted, my first
reaction is: why are we going to have to negotiate with the enemy or be
forced to accept the compromise offered by a judge when it should be
clear that the CPSC has assumed authority where it has none? If this
would be considered a "victory" for our constitutional rights: to
purchase chemicals and other related items which could or could not be
used for "illegal" pursuits, I suppose I was naive in my expectations.
I will continue to donate as much as I can afford financially and will
do whatever I can to help in other ways. It goes without saying that we
all knew that in the current world, justice is seldom cheap and our
donations now are more important than ever. We should all be fully
aware of where we'd be if we had not decided to fight this outrage.
And yet, perhaps we should ask ourselves if negotiating for a "piece"
of our rights is a victory?

Some may feel that this forum is "not the place" to discuss this issue.
Perhaps not. But this "issue" is about the rights of all Americans,
whether or not they are members of the PGI, WPA, or any club. "We" as
firework enthusiasts stand to lose more of our rights than other
disinterested citizens but like the eminent domain debacle, this issue
and the usurping of power by a govt. agency affects all US citizens.
What raw materials will be next under attack?

John Reilly
Post by f***@cableone.net
Post by l***@gmail.com
This message is posted from Tom Handle regarding the
status of the CPSC litigation against Firefox. - Dave
---
In the Firefox/CPSC case, on December 6, 2006, the judge issued
a 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.
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 set a deadline of January 15, 2007 to present the
agreed-upon compromise to him. It is possible that this deadline
could be extended an additional 30 to 90 days if need be.
The judge indicated that he does not want to see Firefox 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. The judge has stated explicitly that it is in the
parties' best interests to reach a compromise agreement --
meaning that it is in both parties' mutual interests for them to
decide what to do rather than the judge.
What does this mean for our hobby?
1) Whatever we get, it will almost certainly be better than what
the CPSC wanted, but less than what Firefox would want. Given
that the judge has indicated his willingness to consider lesser
restrictions than CPSC desired to impose, we are hopeful. But
it is too soon to know the final outcome. And there is a very real
possibility of further expensive and time-consuming legal action.
In the short-term, we must prepare thoroughly for the upcoming
negotiations, including creative approaches that might satisfy
CPSC's desire to ensure that pyrotechnic materials are only used
in an acceptable manner.
2) The fireworks hobby community will have input, either via
negotiations with CPSC or via submission to the judge, in the
final outcome.
3) If a mutually acceptable negotiation is reached, our hobby will
continue. But, whether a negotiated settlement is reached or the
judge himself decides, it is inevitable that quantities of some
chemicals available to non-ATF licensed buyers will be reduced.
What do we need to do next?
1) The case is not over. We still have huge expenses ahead as
we enter into negotiations. Please make a contribution to the
Fireworks Foundation. We do not want to falter now that we are
entering the home stretch. We absolutely need more funding.
2) If you know federally elected or appointed officials with
potential influence at or upon CPSC, please contact John
Steinberg, Tom Handel, or Harry Gilliam immediately.
Contact information below.
3) Please join the Fireworks Alliance if you have not already done
so. This will be the basis of our future efforts as we continue our
long range goals of working to develop a better regulatory climate
for our hobby. Go to http://www.fireworksalliance.com and sign up
there. It's free.
The PGI Board of Directors, the Board of the Fireworks Alliance,
and the Trustees of the Fireworks Foundation want to thank
each and every one of you who has contributed time, money
or effort to this matter so far. You have made it possible for
the Firefox case to get this far. Although the case is not over
yet, and there is still much legal work to be done on it, we
want you to know that you have truly made a difference to the
fireworks hobby. Without the strong showing we made enabled
by the funding you provided to defend this matter aggressively,
FireFox would have been compelled to enter into an agreement,
crafted unilaterally by the CPSC, that would have effectively
ended their business and quite possibly our hobby years ago.
Thank you again, and, please, send those checks and PayPal
donations to the Fireworks Foundation today. After all, couldn't you
use one more tax deduction in 2006?
Make your check payable to: "The Fireworks Foundation"
Michael Swisher, Treasurer
The Fireworks Foundation
14511 Olinda Boulevard, North
Stillwater, Minnesota 55082
http://www.fireworksalliance.org
krackerjack9
2006-12-14 05:53:54 UTC
Permalink
I look at it as in Firefox didnt get shut down and the case is still
open and looks like it wont be all that bad in the end. Is it wrong
that the CPSC is doing this?? yes but times have changed its all in how
do you feel now syndrome. What will both sides offer or bring to the
plate??

Firefox could further increase the awareness of who they are selling
to.
They could limit times of the year certain chemicals are available for
purchase, sounds crazy but if the real concern is the so called Im 16
and I want to make some M-80s or similar. The action of no 2 chemicals
can be purchased together similar to Skylighters policy they could
offer that up or even modify it to one would have to submit a
application to purchase said items,, the legitimate pyro person yes
will look at this and see it as a waste of time and I been doing this
for years I shouldnt have to. Well most already have good standing with
your vendors and I doubt that will be a issue, If their really after
the Kewl ones this would be something that would make it not worth
their trouble. There is all sorts of other little inconvence things
they could come up with,

The CPSC will want all sales records sent to them and maybe it will be
like a 7 day waiting period sort of like handgun purchases, if one
looks at it that way then there is already a procedure in place and go
that route, now who would pay for the cost on doing this??

Now this might be a good thing get the NRA on this..

Give a little get a little, but as the other post mentions some very
valid points of the orginal issue of the suit
m***@newsguy.com
2006-12-14 17:39:57 UTC
Permalink
Post by f***@cableone.net
Ken,
Thanks very much for posting this information.
I find myself somewhat confused though by the judge's instruction that
includes "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."
What has happened is basically this.

The judge has ruled subsequent to a hearing on CPSC's motion for
summary judgment in its favor. The judge's ruling essentially rejects
that motion and directs the parties to negotiate a compromise. While
that's not as good as an outright victory for Firefox, it is by no
means a defeat for them. It IS a defeat for the CPSC because it's not
an outright victory for CPSC.

Such a settlement negotiation a common step in civil litigation. The
judge is trying to clear his court calendar and to avoid a formal civil
trial by getting the parties to agree to "split the difference" somehow
between them.

Whether this will or can happen, I cannot say, but my observation of
such things persuades me that it is in a litigant's interest to
compromise. Judges tend not to favor a party to litigation who refuses
to bend even a little.

Last August one of the attorneys for Firefox told me that the expert
witness engaged by the Department of Justice recommended a compromise -
and he thought that CPSC was likely to reject this advice. My
interpretation of their failure to obtain summary judgment in their
favor is that the judge is signalling that they will have to move from
their position. How good this news is for Firefox, we can't say, but we
can say that it isn't bad news.
Post by f***@cableone.net
Isn't the CPSC's authority to limit or prohibit the sale of certain
chemicals to certain individuals the very contentious center of the
argument presented to the court? If the CPSC has, in fact, no legal
authority to control chemical sales, how does one then craft a mutually
acceptable agreement that respects a non-existent authority? If the
CPSC does have such authority, then why is this civil action necessary?
It is the CPSC's position, as I understand it, that the sale to any
given customer of a quantity of potassium perchlorate and visco fuse 3
months ago, followed by the sale of a quantity of aluminum powder and
end plugs today, and the sale of a quantity of paper tubes 3 months
from now, taken together, constitute the equivalent of selling all of
these materials in a kit or package at once.

In the late '60s, after cherry bombs and M-80s were banned, a number of
entrepreneurs sprung up (does anyone remember "Ecco Products" or
"Caseco"?) who sold "kits" to make them, containing measured quantities
of oxidizer, metal powder, tubes, fuse, and end plugs such that all one
had to do was to mix the two packages of chemicals and assemble them
into crackers using the tubes, plugs, and fuse.

The FDA, which then had jurisdiction over 'banned hazardous
substances,' determined that such kits were the functional equivalent
of the finished articles, roughly in the same way that a box of Betty
Crocker cake mix is the functional equivalent of a cake. The CPSC is
the FDA's successor in respect of these particular banned hazardous
substances and they have undisputed authority to suppress them.

So, the issue at hand is not whether CPSC has authority to control
chemical sales, but whether the sale of pyrotechnic chemicals
separately packaged by the pound, and of supplies separately packaged
in standard quantities, at different times, is the same as the sale of
prepackaged "kits," which under the "regulations and applicable law the
CPSC has authority to enforce," are banned. They say it is - we know
it isn't.

Obviously, it's a difference of opinion that makes a horse race - or a
lawsuit. Hence the present litigation.
f***@cableone.net
2006-12-14 18:25:49 UTC
Permalink
Mike,

I appreciate your commentary even as I fear we're being waltzed down a
one-way street that can have only one destination: the piece by piece
dismemberment of the hobby. The "half-loaf" result I fear (wherein both
parties obtain at least a portion of what they sought) is one that
sees, in my fevered view, a potentially endless series of lawsuits,
each designed to refine (and enhance?) the restrictions obtained in a
previous case. If an assortment of pyrotechic supplies purchased
together or over time constitute the purchase of a restricted item then
what activity, finally, is unthreatened by government restriction?

We're such a tiny niche, our David to their Goliath, and remain
vulnerable to a process wherein resources (money) too often determines
the victor. Alas.

As you say, " ... it's a difference of opinion that makes a horse race
- or a
lawsuit." One wonders yet again if justice and wistful memories of
liberty will ever enjoy their day in court.

Tom C.
Post by m***@newsguy.com
Post by f***@cableone.net
Ken,
Thanks very much for posting this information.
I find myself somewhat confused though by the judge's instruction that
includes "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."
What has happened is basically this.
The judge has ruled subsequent to a hearing on CPSC's motion for
summary judgment in its favor. The judge's ruling essentially rejects
that motion and directs the parties to negotiate a compromise. While
that's not as good as an outright victory for Firefox, it is by no
means a defeat for them. It IS a defeat for the CPSC because it's not
an outright victory for CPSC.
Such a settlement negotiation a common step in civil litigation. The
judge is trying to clear his court calendar and to avoid a formal civil
trial by getting the parties to agree to "split the difference" somehow
between them.
Whether this will or can happen, I cannot say, but my observation of
such things persuades me that it is in a litigant's interest to
compromise. Judges tend not to favor a party to litigation who refuses
to bend even a little.
Last August one of the attorneys for Firefox told me that the expert
witness engaged by the Department of Justice recommended a compromise -
and he thought that CPSC was likely to reject this advice. My
interpretation of their failure to obtain summary judgment in their
favor is that the judge is signalling that they will have to move from
their position. How good this news is for Firefox, we can't say, but we
can say that it isn't bad news.
Post by f***@cableone.net
Isn't the CPSC's authority to limit or prohibit the sale of certain
chemicals to certain individuals the very contentious center of the
argument presented to the court? If the CPSC has, in fact, no legal
authority to control chemical sales, how does one then craft a mutually
acceptable agreement that respects a non-existent authority? If the
CPSC does have such authority, then why is this civil action necessary?
It is the CPSC's position, as I understand it, that the sale to any
given customer of a quantity of potassium perchlorate and visco fuse 3
months ago, followed by the sale of a quantity of aluminum powder and
end plugs today, and the sale of a quantity of paper tubes 3 months
from now, taken together, constitute the equivalent of selling all of
these materials in a kit or package at once.
In the late '60s, after cherry bombs and M-80s were banned, a number of
entrepreneurs sprung up (does anyone remember "Ecco Products" or
"Caseco"?) who sold "kits" to make them, containing measured quantities
of oxidizer, metal powder, tubes, fuse, and end plugs such that all one
had to do was to mix the two packages of chemicals and assemble them
into crackers using the tubes, plugs, and fuse.
The FDA, which then had jurisdiction over 'banned hazardous
substances,' determined that such kits were the functional equivalent
of the finished articles, roughly in the same way that a box of Betty
Crocker cake mix is the functional equivalent of a cake. The CPSC is
the FDA's successor in respect of these particular banned hazardous
substances and they have undisputed authority to suppress them.
So, the issue at hand is not whether CPSC has authority to control
chemical sales, but whether the sale of pyrotechnic chemicals
separately packaged by the pound, and of supplies separately packaged
in standard quantities, at different times, is the same as the sale of
prepackaged "kits," which under the "regulations and applicable law the
CPSC has authority to enforce," are banned. They say it is - we know
it isn't.
Obviously, it's a difference of opinion that makes a horse race - or a
lawsuit. Hence the present litigation.
m***@newsguy.com
2006-12-14 20:03:57 UTC
Permalink
I'll suggest another perspective.

I believe it was the CPSC's intention to force the vendors of hobby
firework supplies out of business one-by-one, by presenting them with
these consent decrees and the alternative of ruinous litigation
expense. They had already quietly shut down a couple of smaller vendors
before they went after Firefox. They did not expect the fight they got.

We often hear that you can't fight city hall, that the government has
limitless resources, and so forth. The government indeed has much
larger overall resources than does any individual or private business,
but for projects and tasks the government still has it budgets. My
guess is that, in its effort to close down Firefox, the government is
by now well over it budget, and long past its deadline.

At the bottom of this, I believe, is a basic failure on the part of the
CPSC to comprehend the fireworks hobby or why people pursue it. As long
as I'm making guesses, here mine is that they see fireworks hobbyists
as a principal source of the illicit M-80s, 'quarter-sticks,' and
similar products that they have been trying to suppress for years.
Similarly, I think they see the PGI convention and similar fireworks
festivals only as swap meets/flea markets for fireworks bootleggers.

These views don't stand up to examination - we know, for example, that
the TOTAL amounts of chemicals and components sold through the hobby
fireworks suppliers that MIGHT be used to make these illegal items do
not equal the quantities that have been seized in any one of several
arrests of large-scale bootleg makers. If there is a real problem with
bootleg M-80s, etc. - and there seems to be, at least in some areas -
its sources are not to be found amongst firework hobbyists or their
suppliers.

However, I think we see this mindset stubbornly displayed in the
"referred" IRS audits of the PGI and the Fireworks Foundation.
Although the IRS won't say what agency "referred" the Guild and
Foundation, these audits are almost without doubt either directly
requested by the CPSC or indirectly, through the Department of Justice
lawyers representing CPSC in the Firefox litigation. Bear in mind that
an IRS audit was used to put Al Capone out of the way. I'm sure some
badly misled soul in the CPSC, who thinks of us as basically engaged in
a criminal enterprise, thinks/wishes that the source of unexpected
support for Firefox can be hindered if not destroyed, so that they can
get on with their job, as they see it, without facing resistance.

I can only hope that the people we believe were sent to eavesdrop on
the PGI convention - e.g., the black female I was told was furiously
scribbling notes at the business meeting and the banquet as we raised a
very substantial sum for the Foundation - had the honesty and courage
to tell whomever sent them the truth: the Guild is just a group of
ordinary citizens, from all walks of life, who love fireworks and are
quite unhappy about their agency's arbitrary and unreasonable actions -
and that they're prepared to give generously to fight them.

Ultimately, politicians take notice when enough people are upset about
something. I'm not sure we have the numbers to make an impression in
the political sphere, but we've already made one in the judicial
sphere. Thanks to all for their past support, and please remember that
we need it to continue until we have this resolved.
Post by f***@cableone.net
Mike,
I appreciate your commentary even as I fear we're being waltzed down a
one-way street that can have only one destination: the piece by piece
dismemberment of the hobby. The "half-loaf" result I fear (wherein both
parties obtain at least a portion of what they sought) is one that
sees, in my fevered view, a potentially endless series of lawsuits,
each designed to refine (and enhance?) the restrictions obtained in a
previous case. If an assortment of pyrotechic supplies purchased
together or over time constitute the purchase of a restricted item then
what activity, finally, is unthreatened by government restriction?
We're such a tiny niche, our David to their Goliath, and remain
vulnerable to a process wherein resources (money) too often determines
the victor. Alas.
As you say, " ... it's a difference of opinion that makes a horse race
- or a
lawsuit." One wonders yet again if justice and wistful memories of
liberty will ever enjoy their day in court.
Tom C.
Post by m***@newsguy.com
Post by f***@cableone.net
Ken,
Thanks very much for posting this information.
I find myself somewhat confused though by the judge's instruction that
includes "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."
What has happened is basically this.
The judge has ruled subsequent to a hearing on CPSC's motion for
summary judgment in its favor. The judge's ruling essentially rejects
that motion and directs the parties to negotiate a compromise. While
that's not as good as an outright victory for Firefox, it is by no
means a defeat for them. It IS a defeat for the CPSC because it's not
an outright victory for CPSC.
Such a settlement negotiation a common step in civil litigation. The
judge is trying to clear his court calendar and to avoid a formal civil
trial by getting the parties to agree to "split the difference" somehow
between them.
Whether this will or can happen, I cannot say, but my observation of
such things persuades me that it is in a litigant's interest to
compromise. Judges tend not to favor a party to litigation who refuses
to bend even a little.
Last August one of the attorneys for Firefox told me that the expert
witness engaged by the Department of Justice recommended a compromise -
and he thought that CPSC was likely to reject this advice. My
interpretation of their failure to obtain summary judgment in their
favor is that the judge is signalling that they will have to move from
their position. How good this news is for Firefox, we can't say, but we
can say that it isn't bad news.
Post by f***@cableone.net
Isn't the CPSC's authority to limit or prohibit the sale of certain
chemicals to certain individuals the very contentious center of the
argument presented to the court? If the CPSC has, in fact, no legal
authority to control chemical sales, how does one then craft a mutually
acceptable agreement that respects a non-existent authority? If the
CPSC does have such authority, then why is this civil action necessary?
It is the CPSC's position, as I understand it, that the sale to any
given customer of a quantity of potassium perchlorate and visco fuse 3
months ago, followed by the sale of a quantity of aluminum powder and
end plugs today, and the sale of a quantity of paper tubes 3 months
from now, taken together, constitute the equivalent of selling all of
these materials in a kit or package at once.
In the late '60s, after cherry bombs and M-80s were banned, a number of
entrepreneurs sprung up (does anyone remember "Ecco Products" or
"Caseco"?) who sold "kits" to make them, containing measured quantities
of oxidizer, metal powder, tubes, fuse, and end plugs such that all one
had to do was to mix the two packages of chemicals and assemble them
into crackers using the tubes, plugs, and fuse.
The FDA, which then had jurisdiction over 'banned hazardous
substances,' determined that such kits were the functional equivalent
of the finished articles, roughly in the same way that a box of Betty
Crocker cake mix is the functional equivalent of a cake. The CPSC is
the FDA's successor in respect of these particular banned hazardous
substances and they have undisputed authority to suppress them.
So, the issue at hand is not whether CPSC has authority to control
chemical sales, but whether the sale of pyrotechnic chemicals
separately packaged by the pound, and of supplies separately packaged
in standard quantities, at different times, is the same as the sale of
prepackaged "kits," which under the "regulations and applicable law the
CPSC has authority to enforce," are banned. They say it is - we know
it isn't.
Obviously, it's a difference of opinion that makes a horse race - or a
lawsuit. Hence the present litigation.
f***@cableone.net
2006-12-14 21:20:37 UTC
Permalink
Mike,

About all of it in the particular I do quite agree; that it should, at
the end of the day, deliver up a satisfactory and just result ... from
your lips to God's ear.

Tom C.
Post by m***@newsguy.com
I'll suggest another perspective.
I believe it was the CPSC's intention to force the vendors of hobby
firework supplies out of business one-by-one, by presenting them with
these consent decrees and the alternative of ruinous litigation
expense. They had already quietly shut down a couple of smaller vendors
before they went after Firefox. They did not expect the fight they got.
We often hear that you can't fight city hall, that the government has
limitless resources, and so forth. The government indeed has much
larger overall resources than does any individual or private business,
but for projects and tasks the government still has it budgets. My
guess is that, in its effort to close down Firefox, the government is
by now well over it budget, and long past its deadline.
At the bottom of this, I believe, is a basic failure on the part of the
CPSC to comprehend the fireworks hobby or why people pursue it. As long
as I'm making guesses, here mine is that they see fireworks hobbyists
as a principal source of the illicit M-80s, 'quarter-sticks,' and
similar products that they have been trying to suppress for years.
Similarly, I think they see the PGI convention and similar fireworks
festivals only as swap meets/flea markets for fireworks bootleggers.
These views don't stand up to examination - we know, for example, that
the TOTAL amounts of chemicals and components sold through the hobby
fireworks suppliers that MIGHT be used to make these illegal items do
not equal the quantities that have been seized in any one of several
arrests of large-scale bootleg makers. If there is a real problem with
bootleg M-80s, etc. - and there seems to be, at least in some areas -
its sources are not to be found amongst firework hobbyists or their
suppliers.
However, I think we see this mindset stubbornly displayed in the
"referred" IRS audits of the PGI and the Fireworks Foundation.
Although the IRS won't say what agency "referred" the Guild and
Foundation, these audits are almost without doubt either directly
requested by the CPSC or indirectly, through the Department of Justice
lawyers representing CPSC in the Firefox litigation. Bear in mind that
an IRS audit was used to put Al Capone out of the way. I'm sure some
badly misled soul in the CPSC, who thinks of us as basically engaged in
a criminal enterprise, thinks/wishes that the source of unexpected
support for Firefox can be hindered if not destroyed, so that they can
get on with their job, as they see it, without facing resistance.
I can only hope that the people we believe were sent to eavesdrop on
the PGI convention - e.g., the black female I was told was furiously
scribbling notes at the business meeting and the banquet as we raised a
very substantial sum for the Foundation - had the honesty and courage
to tell whomever sent them the truth: the Guild is just a group of
ordinary citizens, from all walks of life, who love fireworks and are
quite unhappy about their agency's arbitrary and unreasonable actions -
and that they're prepared to give generously to fight them.
Ultimately, politicians take notice when enough people are upset about
something. I'm not sure we have the numbers to make an impression in
the political sphere, but we've already made one in the judicial
sphere. Thanks to all for their past support, and please remember that
we need it to continue until we have this resolved.
Post by f***@cableone.net
Mike,
I appreciate your commentary even as I fear we're being waltzed down a
one-way street that can have only one destination: the piece by piece
dismemberment of the hobby. The "half-loaf" result I fear (wherein both
parties obtain at least a portion of what they sought) is one that
sees, in my fevered view, a potentially endless series of lawsuits,
each designed to refine (and enhance?) the restrictions obtained in a
previous case. If an assortment of pyrotechic supplies purchased
together or over time constitute the purchase of a restricted item then
what activity, finally, is unthreatened by government restriction?
We're such a tiny niche, our David to their Goliath, and remain
vulnerable to a process wherein resources (money) too often determines
the victor. Alas.
As you say, " ... it's a difference of opinion that makes a horse race
- or a
lawsuit." One wonders yet again if justice and wistful memories of
liberty will ever enjoy their day in court.
Tom C.
Post by m***@newsguy.com
Post by f***@cableone.net
Ken,
Thanks very much for posting this information.
I find myself somewhat confused though by the judge's instruction that
includes "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."
What has happened is basically this.
The judge has ruled subsequent to a hearing on CPSC's motion for
summary judgment in its favor. The judge's ruling essentially rejects
that motion and directs the parties to negotiate a compromise. While
that's not as good as an outright victory for Firefox, it is by no
means a defeat for them. It IS a defeat for the CPSC because it's not
an outright victory for CPSC.
Such a settlement negotiation a common step in civil litigation. The
judge is trying to clear his court calendar and to avoid a formal civil
trial by getting the parties to agree to "split the difference" somehow
between them.
Whether this will or can happen, I cannot say, but my observation of
such things persuades me that it is in a litigant's interest to
compromise. Judges tend not to favor a party to litigation who refuses
to bend even a little.
Last August one of the attorneys for Firefox told me that the expert
witness engaged by the Department of Justice recommended a compromise -
and he thought that CPSC was likely to reject this advice. My
interpretation of their failure to obtain summary judgment in their
favor is that the judge is signalling that they will have to move from
their position. How good this news is for Firefox, we can't say, but we
can say that it isn't bad news.
Post by f***@cableone.net
Isn't the CPSC's authority to limit or prohibit the sale of certain
chemicals to certain individuals the very contentious center of the
argument presented to the court? If the CPSC has, in fact, no legal
authority to control chemical sales, how does one then craft a mutually
acceptable agreement that respects a non-existent authority? If the
CPSC does have such authority, then why is this civil action necessary?
It is the CPSC's position, as I understand it, that the sale to any
given customer of a quantity of potassium perchlorate and visco fuse 3
months ago, followed by the sale of a quantity of aluminum powder and
end plugs today, and the sale of a quantity of paper tubes 3 months
from now, taken together, constitute the equivalent of selling all of
these materials in a kit or package at once.
In the late '60s, after cherry bombs and M-80s were banned, a number of
entrepreneurs sprung up (does anyone remember "Ecco Products" or
"Caseco"?) who sold "kits" to make them, containing measured quantities
of oxidizer, metal powder, tubes, fuse, and end plugs such that all one
had to do was to mix the two packages of chemicals and assemble them
into crackers using the tubes, plugs, and fuse.
The FDA, which then had jurisdiction over 'banned hazardous
substances,' determined that such kits were the functional equivalent
of the finished articles, roughly in the same way that a box of Betty
Crocker cake mix is the functional equivalent of a cake. The CPSC is
the FDA's successor in respect of these particular banned hazardous
substances and they have undisputed authority to suppress them.
So, the issue at hand is not whether CPSC has authority to control
chemical sales, but whether the sale of pyrotechnic chemicals
separately packaged by the pound, and of supplies separately packaged
in standard quantities, at different times, is the same as the sale of
prepackaged "kits," which under the "regulations and applicable law the
CPSC has authority to enforce," are banned. They say it is - we know
it isn't.
Obviously, it's a difference of opinion that makes a horse race - or a
lawsuit. Hence the present litigation.
Overclocked
2006-12-15 02:11:59 UTC
Permalink
So What chemicals are going to be Limited? Id imagine KNO3, KCLO3,
KCLO3, and Probably Aluminum Powder and Ammonium Nitrate. But what
would they be limited too? 1 Lb a year without a license? It really
does kinda suck, Even If you use chemicals for General experimentation
and not for pyrotechnical uses.

So chemicals are being banned because people still want to make M-80s
Without a License? (What Is considered an M-80 Anyway? Does it have to
explode or make a noise even if it doesnt use flash powder?) However,
not everyone wants to make M-80, maybe I want to make a blue fountain
or something that suits my taste.

Ive heard people go as far as saying that these "actions" are to
prevent free thinking, and to prevent the scientific community from
growing...(after all, Pyrotechnics IS the art [and science] of
fire...(But why would the gov. not want the Sci Community to grow?- Is
what I have to say) Of course thats another topic that doesnt have much
to do with pyrotechnics.
Fireball
2006-12-15 05:35:05 UTC
Permalink
The metals-AL, MG

The oxidizers KNO3, KCLO, KCLO4,Ammonium Nitrate

pyrohobie
Post by Overclocked
So What chemicals are going to be Limited? Id imagine KNO3, KCLO3,
KCLO3, and Probably Aluminum Powder and Ammonium Nitrate. But what
would they be limited too? 1 Lb a year without a license? It really
does kinda suck, Even If you use chemicals for General experimentation
and not for pyrotechnical uses.
So chemicals are being banned because people still want to make M-80s
Without a License? (What Is considered an M-80 Anyway? Does it have to
explode or make a noise even if it doesnt use flash powder?) However,
not everyone wants to make M-80, maybe I want to make a blue fountain
or something that suits my taste.
Ive heard people go as far as saying that these "actions" are to
prevent free thinking, and to prevent the scientific community from
growing...(after all, Pyrotechnics IS the art [and science] of
fire...(But why would the gov. not want the Sci Community to grow?- Is
what I have to say) Of course thats another topic that doesnt have much
to do with pyrotechnics.
mikes2653
2006-12-15 16:41:08 UTC
Permalink
NO limits or bans have been put in place, as yet. Either some
compromise will be hammered out between CPSC and Firefox, or it will
not. If it should not be, the judge will decide.

Whatever settlement is negotiated, it will be between Firefox and the
CPSC. It will not - immediately - affect any other supplier. One might
expect the CPSC at some later period to try to force similar
restrictions on others, but each such attempt would involve separate
litigation.
Post by Overclocked
So What chemicals are going to be Limited? Id imagine KNO3, KCLO3,
KCLO3, and Probably Aluminum Powder and Ammonium Nitrate. But what
would they be limited too? 1 Lb a year without a license? It really
does kinda suck, Even If you use chemicals for General experimentation
and not for pyrotechnical uses.
So chemicals are being banned because people still want to make M-80s
Without a License? (What Is considered an M-80 Anyway? Does it have to
explode or make a noise even if it doesnt use flash powder?) However,
not everyone wants to make M-80, maybe I want to make a blue fountain
or something that suits my taste.
Ive heard people go as far as saying that these "actions" are to
prevent free thinking, and to prevent the scientific community from
growing...(after all, Pyrotechnics IS the art [and science] of
fire...(But why would the gov. not want the Sci Community to grow?- Is
what I have to say) Of course thats another topic that doesnt have much
to do with pyrotechnics.
Diadem
2006-12-15 16:44:44 UTC
Permalink
Mike,

I seen it reported somewhere, I don't remember off the top of my head
where, that Skylighter already entered into an agreement with the CPSC.
Do you know what the nature and terms of that agreement was?
Post by mikes2653
NO limits or bans have been put in place, as yet. Either some
compromise will be hammered out between CPSC and Firefox, or it will
not. If it should not be, the judge will decide.
Whatever settlement is negotiated, it will be between Firefox and the
CPSC. It will not - immediately - affect any other supplier. One might
expect the CPSC at some later period to try to force similar
restrictions on others, but each such attempt would involve separate
litigation.
John Reilly
2006-12-15 17:43:11 UTC
Permalink
Post by Diadem
Mike,
I seen it reported somewhere, I don't remember off the top of my head
where, that Skylighter already entered into an agreement with the CPSC.
Do you know what the nature and terms of that agreement was?
Maybe the consent agreement was one I found on the CPSC website listing
the many trophy scalps they have taken from other legitemate product
manufacturers and distributors which would be a danger only to
humanoids with the brains of a slug. While I'm sure that the
population percentage of such beings has increased due the "social"
programs and the criminally legal litigation which has become the M.O.
of politicians and lawyers in the last 70 years, this strongarm
extortion by the CPSC is no less evil. Skylighter was appaantly selling
some kind of plastic floral shaped candle (not Roman variety) which if
left unattended could possibly catch fire. Image that!?
Kind of like the wooden "turned" spindle type candlesticks which could
also cause injury to imbeciles. God only knows what "terms" were
demanded by the CPSC crew assigned to negotioate THAT contract.

John
Post by Diadem
Post by mikes2653
NO limits or bans have been put in place, as yet. Either some
compromise will be hammered out between CPSC and Firefox, or it will
not. If it should not be, the judge will decide.
Whatever settlement is negotiated, it will be between Firefox and the
CPSC. It will not - immediately - affect any other supplier. One might
expect the CPSC at some later period to try to force similar
restrictions on others, but each such attempt would involve separate
litigation.
mikes2653
2006-12-15 19:51:02 UTC
Permalink
I am not aware of this. You could always ask Harry.

CPSC "visited" his office and demanded to see his correspondence,
invoices, etc., but to my knowledge they have not instituted any legal
process against Skylighter.
Post by Diadem
Mike,
I seen it reported somewhere, I don't remember off the top of my head
where, that Skylighter already entered into an agreement with the CPSC.
Do you know what the nature and terms of that agreement was?
Post by mikes2653
NO limits or bans have been put in place, as yet. Either some
compromise will be hammered out between CPSC and Firefox, or it will
not. If it should not be, the judge will decide.
Whatever settlement is negotiated, it will be between Firefox and the
CPSC. It will not - immediately - affect any other supplier. One might
expect the CPSC at some later period to try to force similar
restrictions on others, but each such attempt would involve separate
litigation.
f***@cableone.net
2006-12-15 20:40:12 UTC
Permalink
Skylighter did execute a "product recall" and discussed the particulars
in their Bulletin # 64.

Better yet:

http://www.skylighter.com/skylighter_info_pages/article.asp?Item=74#Product_Recall

Tom C.
Post by mikes2653
I am not aware of this. You could always ask Harry.
CPSC "visited" his office and demanded to see his correspondence,
invoices, etc., but to my knowledge they have not instituted any legal
process against Skylighter.
Post by Diadem
Mike,
I seen it reported somewhere, I don't remember off the top of my head
where, that Skylighter already entered into an agreement with the CPSC.
Do you know what the nature and terms of that agreement was?
Post by mikes2653
NO limits or bans have been put in place, as yet. Either some
compromise will be hammered out between CPSC and Firefox, or it will
not. If it should not be, the judge will decide.
Whatever settlement is negotiated, it will be between Firefox and the
CPSC. It will not - immediately - affect any other supplier. One might
expect the CPSC at some later period to try to force similar
restrictions on others, but each such attempt would involve separate
litigation.
Kelly
2006-12-15 22:44:42 UTC
Permalink
Post by mikes2653
I am not aware of this. You could always ask Harry.
CPSC "visited" his office and demanded to see his correspondence,
invoices, etc., but to my knowledge they have not instituted any legal
process against Skylighter.
When you say 'visited', I assume you mean with a LEO and a warrant?
Otherwise, they'd be shown the door, right?

Kelly
mikes2653
2006-12-16 18:23:20 UTC
Permalink
No, as I have noted, there has been no formal legal process to date
against Skylighter for the sale of chemicals and supplies, including
official service of any writ or warrant.

The way I understood it, CPSC people simply came to his office and
asked to see the documents in question. There is no point in showing
such people the door, since they will only come back later with a
warrant and a nastier attitude.

One can of course always stand on one's rights, but there is generally
a price to be paid for so doing. The wise man picks his fights
carefully.
Post by Kelly
Post by mikes2653
I am not aware of this. You could always ask Harry.
CPSC "visited" his office and demanded to see his correspondence,
invoices, etc., but to my knowledge they have not instituted any legal
process against Skylighter.
When you say 'visited', I assume you mean with a LEO and a warrant?
Otherwise, they'd be shown the door, right?
Kelly
Putt...
2006-12-14 06:31:32 UTC
Permalink
This may be the paragraph that works in FireFox's favor..
If the CPSC can be shown to be overstepping its bounds
it may tip the scales in Firefox's favor.. If Firefox uses the
argument that it cant negotiate because the CPSC does not
have authority in that area, then if the judge has to step in
it could very well go in Firefox's favor...

Putt..


"In the Firefox/CPSC case, on December 6, 2006, the judge issued
a 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."
Mark Bowers
2006-12-14 07:20:17 UTC
Permalink
Post by Putt...
This may be the paragraph that works in FireFox's favor..
If the CPSC can be shown to be overstepping its bounds
it may tip the scales in Firefox's favor.. If Firefox uses the
argument that it cant negotiate because the CPSC does not
have authority in that area, then if the judge has to step in
it could very well go in Firefox's favor...
Putt..
"In the Firefox/CPSC case, on December 6, 2006, the judge issued
a 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."
Well, isn't the mechanism used by CPSC in all these anti-vendor cases
known as a 'consent decree' ? Seems since they are not an executive
agency, but theoretically a commission reporting to a senate committee,
they get the victim to 'agree' to something, which then becomes
enforceable by agencies with police powers.

I have to dig up the replies I received in response to a letter I sent
to Senator Ted Stevens. I was surprised that he (well, his office most
likely) even responded. First letter that he would look into the CPSC
actions recently written about in Wired Magazine ( the specific case
involved United Nuclear ), and then another letter, in which was
enclosed a reponse from the CPSC to Senator Stevens. Sorry to say, same
old BS line... they are looking out for the health and welfare of the
'American Consumer' (tm), and nothing about the gestapo-like tactics
they have at times used.

I will look for the letter and post a scan someplace if there is any
interest, but it really didn't say much. I am glad that *I* am not
involved in any form of commerce though, since I am probably in the
'annoying bug to be crushed later' file LOL...
jlmemt
2006-12-14 07:27:32 UTC
Permalink
Post by Putt...
This may be the paragraph that works in FireFox's favor..
If the CPSC can be shown to be overstepping its bounds
it may tip the scales in Firefox's favor.. If Firefox uses the
argument that it cant negotiate because the CPSC does not
have authority in that area, then if the judge has to step in
it could very well go in Firefox's favor...
Putt..
"In the Firefox/CPSC case, on December 6, 2006, the judge issued
a 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."
I take that to mean that the judge believes the CPSC does have at least
some authority. I would also take it though that the judge is implying
that it is a specific area.
tes
2006-12-14 11:40:27 UTC
Permalink
***@gmail.com in part wrote:

=Thank you again, and, please, send those checks and PayPal
=donations to the Fireworks Foundation today. After all, couldn't you
=use one more tax deduction in 2006?

Much thanks for the update and all that you and the rest of the
organization does in defense
of our constitutional rights.

All others, get that card out and go to the site and make a donation.

best,
Thomas E Shavel
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