Email from NYSDOL on May 28, 2009

From: "Lord, Lansing (LABOR)"
Date: May 28, 2009 4:47:15 PM EDT
Subject: New Pyrotechnic Regulations

The Department of Labor has been working to implement the new pyrotechnic licensing requirements and we wanted to take this opportunity to let you know how we plan to interpret and implement those requirements.

Operators can work without certifications under the supervision of lead pyrotechnicians, who will be grandfathered in during the first round

Every pyrotechnic display conducted in New York on or after October 4, 2009, will have to have at least one lead pyrotechnician who possesses a certificate of competence issued by the Commissioner of Labor. Not every operator will need to have a certificate of competence: uncertified operators will be allowed to work under the direct supervision and control of a certified pyrotechnician. That approach will provide apprenticeship opportunities for new operators to gain the experience necessary to qualify for a certification in the future. It will also allow out of state, as well as local, operators the opportunity to work on a show without having to obtain their own certificate of competence.

In order to meet the October 4, 2009, deadline and avoid major disruptions to the industry that would result if there were a delay in issuing certifications, the Department plans to ÒgrandfatherÓ in those operators who have previously been placed in charge of displays, provided that they also satisfy the other requirements (detailed below).

To get sufficient numbers of lead pyrotechnicians certified by October 4, the Department will plan to start accepting applications in August, 2009, so that certifications can be in hand before the end of September, 2009.

The Commissioner will establish a pyrotechnic board; interested candidates should apply now

The statute that requires certification of pyrotechnicians also authorizes and directs the Commissioner to promulgate rules and regulations to administer and enforce the certification requirement and provides for an examining board to be created pursuant to those rules and regulations. General Business Law § 483. The Commissioner is drafting emergency regulations to create such a board and provide for the administration and enforcement of the certification requirement (details below).

Candidates interested in being considered for a position on the pyrotechnicians examining board should submit a resume identifying their relevant background and experience, together with a cover letter to the following address:

Pico Ben-Amotz, Esq.
Deputy Commissioner for Worker Protection
New York State Department of Labor
State Office Campus Building 12240
Albany, NY 12240
Letters of support or recommendations for candidates can either be included in the submission, or sent separately to the same address.

Emergency regulations will be made available for review before they are published

As mentioned above, the Commissioner is drafting regulations that will initially be published on an emergency basis so that they can be in place in time to allow the Commissioner to start accepting applications in August and issuing certifications in September. Publication of regulations on an emergency basis allows them to take effect immediately, without a requiring a prior waiting period for notice and comment by the public. While such regulations must still provide for formal public comment at a later date, the procedure does not provide any formal mechanism for prior public review and comment. The Department recognizes how valuable public comment can be in rulemaking and would like to provide an opportunity for the public to review the emergency regulations before they are published.

Accordingly, the Department plans to post our draft regulations on our website as soon as they can be made available, which may be as early as the first or second week of June. At that point we would like to delay our publication of those regulations for at least a week, to allow an opportunity for those who are interested to review the regulations and comment on any critical issues that should be addressed before the emergency rules are published. Comments regarding other issues can be raised at a later date during the formal comment period that will be required in the future.

Summary of proposed regulations being considered

The proposed regulations for certifications of pyrotechnicians and certain other occupations (such as crane operators and blasters), will be broken down into two parts. The first will contain general provisions that are common to all certified occupations and the second will contain provisions that are specific to each occupation that may expand on or depart from the general provisions.

The general provisions will contain the basic definitions, requirements, and procedures concerning applications and fees ($150 for a certificate hat lasts three years), background checks (including physical and criminal), examinations (written, or practical, or both), and for hearings to be conducted (by an examining board, if one exists, otherwise by a hearing officer) before any certification can be suspended, revoked, restricted, or refused to be renewed.

The specific provisions for pyrotechnicians will establish a pyrotechnician examining board (at least three members, including at least one pyrotechnician and at least one representing a pyrotechnic display company). The Commissioner may seek a larger board of five members at the outset, given all the work that will be required up front in reviewing and establishing qualification and training requirements and setting up a written examination, in addition to holding hearing, if any should be required.

The specific requirements for pyrotechnicians will also establish the basic qualification requirements including age (21 years), training (a general requirement that the examining board could flesh out), minimum experience (at least five displays within the past three years) and the following classifications:

Class A: All displays
Class B: Displays other than proximate audience
Class C: Displays before a proximate audience.

Applicants could apply for any class of license if they meet the experience requirements for that class: 5 proximate shows for Class C, 5 nonproximate shows for Class B, and 4 of each for a Class A. Similarly, for those who seek to be grandfathered in, they would have to have been in charge of at least one of each type of show relevant to the Class they seek: 1 proximate for Class C, one nonproximate for Class B, and one of each for Class A.

The specific requirements for pyrotechnicians would also include a duty to report unusual incidents that resulted in, or could have resulted in personal injury or damage to property, and provisions for issuing certificates without examination, either based on reciprocity (recognizing a license from another state) or grandfathering in (the first round of certifications).