S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4725

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 5, 2009
                               ___________

Introduced  by M. of A. MORELLE -- read once and referred to the Commit-
  tee on Codes

AN ACT to amend the penal law and the arts and cultural affairs law,  in
  relation  to  fireworks,  dangerous  fireworks  and  novelty  devices;
  repealing section 270.00 of the penal law relating thereto and provid-
  ing for the repeal of such provisions upon expiration thereof

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 270.00 of the penal law is REPEALED.
  S  2.  The penal law is amended by adding a new article 271 to read as
follows:
                               ARTICLE 271
           FIREWORKS, DANGEROUS FIREWORKS AND NOVELTY DEVICES
SECTION 271.00 DEFINITIONS.
        271.05 CRIMINAL POSSESSION OR SALE OF FIREWORKS  IN  THE  SECOND
                 DEGREE.
        271.10 CRIMINAL  POSSESSION  OR  SALE  OF FIREWORKS IN THE FIRST
                 DEGREE.
        271.15 UNLAWFUL POSSESSION OF FIREWORKS.
        271.20 AGGRAVATED SALE OF FIREWORKS TO A MINOR.
        271.25 CRIMINAL POSSESSION OF FIREWORKS; PRESUMPTION.
        271.30 LIMITATION OF APPLICATION.
        271.35 SALE OF AMMUNITION NOT PROHIBITED.
        271.40 UNLAWFUL SALE OF AMMUNITION.
S 271.00 DEFINITIONS.
  FOR PURPOSES OF THIS ARTICLE:
  1. "APA STANDARD 87-1" MEANS THE 2001 APA STANDARD 87-1  PUBLISHED  BY
THE AMERICAN PYROTECHNICS ASSOCIATION OF BETHESDA, MARYLAND, AS AMENDED,
AND  INCORPORATED  BY REFERENCE INTO THE CODE OF FEDERAL REGULATIONS, AS
SUCH REGULATIONS EXIST ON THE DATE THIS ARTICLE TAKES EFFECT.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00826-01-9

              

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  2. "CONSUMER FIREWORKS" MEANS  SMALL  FIREWORKS  DEVICES,  OTHER  THAN
SPARKLERS AND NOVELTIES, THAT ARE DESIGNED TO PRODUCE VISIBLE EFFECTS BY
COMBUSTION AND THAT ARE REQUIRED TO COMPLY WITH THE CONSTRUCTION, CHEMI-
CAL  COMPOSITION,  AND  LABELING  REGULATIONS  PROMULGATED BY THE UNITED
STATES  CONSUMER  PRODUCT  SAFETY COMMISSION UNDER 16 CFR PARTS 1500 AND
1507 AND WHICH ARE LISTED IN THE APA STANDARD 87-1.  CONSUMER  FIREWORKS
INCLUDE,  BUT  ARE  NOT LIMITED TO, SMALL DEVICES DESIGNED TO PRODUCE AN
AUDIBLE EFFECT, SUCH AS WHISTLING DEVICES, FIRECRACKERS CONTAINING FIFTY
MILLIGRAMS OR  LESS  OF  PYROTECHNIC  COMPOSITION,  AND  AERIAL  DEVICES
CONTAINING  ONE HUNDRED THIRTY MILLIGRAMS OR LESS OF EXPLOSIVE MATERIALS
AND CLASSIFIED AS FIREWORKS UNO336 UNDER 49 CFR 172.101 EXCEPT FOR FUSED
SET PIECES CONTAINING COMPONENTS THAT TOGETHER EXCEED  FIFTY  MILLIGRAMS
OF SALUTE POWDER.
  3.  "DISPLAY  FIREWORKS"  MEANS  LARGE FIREWORKS DESIGNED PRIMARILY TO
PRODUCE VISIBLE OR AUDIBLE EFFECTS BY COMBUSTION, DEFLAGRATION, OR DETO-
NATION AND INCLUDES, BUT IS NOT LIMITED TO, SALUTES CONTAINING MORE THAN
TWO GRAINS (ONE HUNDRED THIRTY MILLIGRAMS) OF EXPLOSIVE MATERIALS, AERI-
AL SHELLS CONTAINING MORE THAN FORTY GRAMS OF PYROTECHNIC  COMPOSITIONS,
AND  OTHER  DISPLAY PIECES THAT EXCEED THE LIMITS OF EXPLOSIVE MATERIALS
FOR CLASSIFICATION AS CONSUMER FIREWORKS, AND WHICH  ARE  CLASSIFIED  AS
FIREWORKS  UNO333,  UNO334, OR UNO335 UNDER 49 CFR 172.101 AND INCLUDING
FUSED SET PIECES CONTAINING COMPONENTS THAT EXCEED FIFTY  MILLIGRAMS  OF
SALUTE POWDER.
  4.  "FIREWORKS"  MEANS  AND  INCLUDES  ANY CONSUMER FIREWORKS, DISPLAY
FIREWORKS, ARTICLES PYROTECHNIC, AND SPECIAL EFFECTS PROVIDED,  HOWEVER,
THAT SUCH TERM SHALL NOT INCLUDE:
  (A) SPARKLERS AND NOVELTIES;
  (B) FLARES OF THE TYPE USED BY RAILROADS OR ANY WARNING LIGHTS COMMON-
LY KNOWN AS RED FLARES, OR MARINE DISTRESS SIGNALS OF A TYPE APPROVED BY
THE UNITED STATES COAST GUARD; OR
  (C)  BANK  SECURITY DEVICES WHICH CONTAIN NOT MORE THAN FIFTY GRAMS OF
ANY COMPOUND OR SUBSTANCE OR ANY COMBINATION THEREOF, TOGETHER  WITH  AN
IGNITER  NOT  EXCEEDING  0.2  GRAM,  CAPABLE OF PRODUCING A LACHRYMATING
AND/OR VISIBLE OR AUDIBLE EFFECT, WHERE SUCH DEVICE IS  STORED  OR  USED
ONLY  BY  BANKS, NATIONAL BANKING ASSOCIATIONS, TRUST COMPANIES, SAVINGS
BANKS, SAVINGS  AND  LOAN  ASSOCIATIONS,  INDUSTRIAL  BANKS,  OR  CREDIT
UNIONS,  OR  BY  ANY  MANUFACTURER, WHOLESALER, DEALER, JOBBER OR COMMON
CARRIER FOR SUCH DEVICES AND WHERE THE TOTAL STORAGE ON ANY ONE PREMISES
DOES NOT EXCEED ONE HUNDRED DEVICES.
  5. "SPARKLERS AND NOVELTIES" MEANS:
  (A) GROUND AND HANDHELD SPARKLING DEVICES AS DEFINED IN  APA  STANDARD
87-1 3.1.
  (B)  NOVELTIES,  INCLUDING PARTY POPPERS, SNAPPERS, TOY SMOKE DEVICES,
SNAKES, GLOW WORMS, WIRE SPARKLERS AND DIPPED STICKS, ALL AS DEFINED  IN
APA STANDARD 87-1 3.2.
  (C) TOY CAPS AS DEFINED IN APA STANDARD 87-1 3.3, AND
  (D)  SIMILARLY  EXPLOSIVE FIREWORKS NOT SPECIFICALLY DESCRIBED HEREIN,
BUT RECOGNIZED BY THE AMERICAN  PYROTECHNICS  ASSOCIATION  OF  BETHESDA,
MARYLAND, AS BEING ALMOST IDENTICAL IN AN INCENDIARY OR EXPLOSIVE NATURE
SO AS TO SUBSTANTIALLY REPLICATE ANYTHING DEFINED IN PARAGRAPHS (A), (B)
OR (C) OF THIS SUBDIVISION.
  6. "PYROTECHNIC COMPOSITION" MEANS A MIXTURE OF CHEMICALS THAT PRODUC-
ES A VISIBLE OR AUDIBLE EFFECT BY COMBUSTION RATHER THAN RAPID DEFLAGRA-
TION  OR DETONATION AND WHICH CANNOT EXPLODE ON IGNITION UNLESS SEVERELY
CONFINED.

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  7. "EXPLOSIVE COMPOSITION" MEANS A CHEMICAL OR  MIXTURE  OF  CHEMICALS
THAT  PRODUCES  AN  AUDIBLE  EFFECT  AND  SUBSTANTIAL EXPLOSIVE FORCE BY
DEFLAGRATION OR DETONATION WHEN IGNITED.
  8.  "LOCAL  GOVERNMENTAL  SUBDIVISION"  MEANS  A COUNTY, CITY, TOWN OR
VILLAGE.
S 271.05 CRIMINAL POSSESSION OR SALE OF FIREWORKS IN THE SECOND DEGREE.
  A PERSON IS GUILTY OF CRIMINAL POSSESSION OR SALE OF FIREWORKS IN  THE
SECOND  DEGREE  WHEN,  EXCEPT  WHERE  A  PERMIT  IS OBTAINED PURSUANT TO
SECTION 405.00 OF THIS CHAPTER:
  1. HE OR SHE SHALL OFFER OR EXPOSE FOR  SALE,  SELL  OR  FURNISH,  ANY
CONSUMER FIREWORKS OR DISPLAY FIREWORKS; OR
  2.  HE  OR  SHE  SHALL  OFFER  OR EXPOSE FOR SALE, SELL OR FURNISH ANY
SPARKLERS AND NOVELTIES TO ANY PERSON WHO IS UNDER THE AGE OF EIGHTEEN.
  CRIMINAL POSSESSION OR SALE OF FIREWORKS IN THE  SECOND  DEGREE  IS  A
CLASS B MISDEMEANOR.
S 271.10 CRIMINAL POSSESSION OR SALE OF FIREWORKS IN THE FIRST DEGREE.
  A  PERSON IS GUILTY OF CRIMINAL POSSESSION OR SALE OF FIREWORKS IN THE
FIRST DEGREE WHEN:
  1. HE OR SHE SHALL OFFER OR EXPOSE FOR  SALE,  SELL  OR  FURNISH,  ANY
CONSUMER  FIREWORKS  OR DISPLAY FIREWORKS VALUED AT FIVE HUNDRED DOLLARS
EXCEPT WHERE A PERMIT IS OBTAINED PURSUANT TO  SECTION  405.00  OF  THIS
CHAPTER; OR
  2.  HE  OR  SHE  SHALL  OFFER OR EXPOSE FOR SALE, SELL OR FURNISH, ANY
SPARKLERS AND NOVELTIES, CONSUMER FIREWORKS OR DISPLAY FIREWORKS TO  ANY
PERSON WHO IS UNDER THE AGE OF EIGHTEEN.
  CRIMINAL  POSSESSION  OR  SALE  OF  FIREWORKS IN THE FIRST DEGREE IS A
CLASS A MISDEMEANOR.
S 271.15 UNLAWFUL POSSESSION OF FIREWORKS.
  A PERSON IS GUILTY OF UNLAWFUL POSSESSION OF FIREWORKS WHEN, EXCEPT AS
HEREIN OTHERWISE STATED, OR EXCEPT WHERE A PERMIT IS  OBTAINED  PURSUANT
TO SECTION 405.00 OF THIS CHAPTER, HE OR SHE SHALL POSSESS, USE, EXPLODE
OR CAUSE TO EXPLODE ANY CONSUMER FIREWORKS OR DISPLAY FIREWORKS.
  UNLAWFUL POSSESSION OF FIREWORKS IS A VIOLATION.
S 271.20 AGGRAVATED SALE OF FIREWORKS TO A MINOR.
  A  PERSON IS GUILTY OF AGGRAVATED SALE OF FIREWORKS TO A MINOR WHEN HE
OR SHE COMMITS THE CRIME OF CRIMINAL SALE  OF  FIREWORKS  IN  THE  FIRST
DEGREE  AS  DEFINED IN SUBDIVISION TWO OF SECTION 271.10 OF THIS ARTICLE
OR THE CRIME OF CRIMINAL POSSESSION OR SALE OF FIREWORKS IN  THE  SECOND
DEGREE  AS  DEFINED IN SUBDIVISION TWO OF SECTION 271.05 OF THIS ARTICLE
AND HAS WITHIN THE PAST FIVE YEARS BEEN PREVIOUSLY CONVICTED OF CRIMINAL
SALE OF FIREWORKS IN THE FIRST DEGREE OR CRIMINAL POSSESSION OR SALE  OF
FIREWORKS  IN THE SECOND DEGREE AS DEFINED IN SUBDIVISION TWO OF SECTION
271.05 OF THIS ARTICLE.
  AGGRAVATED SALE OF FIREWORKS TO A MINOR IS A CLASS E FELONY.
S 271.25 CRIMINAL POSSESSION OF FIREWORKS; PRESUMPTION.
  EXCEPT WHERE A PERMIT IS OBTAINED PURSUANT TO SECTION 405.00  OF  THIS
CHAPTER, POSSESSION OF CONSUMER FIREWORKS OR DISPLAY FIREWORKS VALUED AT
ONE HUNDRED FIFTY DOLLARS OR MORE SHALL BE A PRESUMPTION THAT SUCH FIRE-
WORKS WERE INTENDED TO BE OFFERED OR EXPOSED FOR SALE.
S 271.30 LIMITATION OF APPLICATION.
  1. THIS ARTICLE SHALL NOT APPLY TO:
  (A)  CONSUMER FIREWORKS OR SPARKLERS AND NOVELTIES WHILE IN POSSESSION
OF RAILROADS AND TRANSPORTATION AGENCIES FOR THE PURPOSE OF  TRANSPORTA-
TION TO POINTS WITHOUT THE STATE, THE SHIPMENT OF WHICH IS NOT PROHIBIT-
ED  BY  THE INTERSTATE COMMERCE COMMISSION REGULATIONS AS FORMULATED AND
PUBLISHED FROM TIME TO TIME, UNLESS THEY BE HELD VOLUNTARILY    BY  SUCH

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RAILROADS  OR  TRANSPORTATION  COMPANIES AS WAREHOUSEMEN FOR DELIVERY TO
POINTS WITHIN THE STATE;
  (B)  SIGNALING  DEVICES  USED  BY RAILROAD COMPANIES OR MOTOR VEHICLES
REFERRED  TO  IN  SUBDIVISION  SEVENTEEN  OF   SECTION   THREE   HUNDRED
SEVENTY-FIVE OF THE VEHICLE AND TRAFFIC LAW;
  (C) HIGH EXPLOSIVES FOR BLASTING OR SIMILAR PURPOSES;
  (D)  FIREWORKS, FOR THE USE THEREOF BY THE UNITED STATES MILITARY, AND
DEPARTMENTS OF THE STATE AND FEDERAL GOVERNMENT; OR
  (E) THE USE, TRANSPORTATION AND STORAGE OF FIREWORKS, PYROTECHNICS AND
SPECIAL EFFECTS MATERIALS IN CONNECTION WITH THE  PRODUCTION  OF  MOTION
PICTURES,  TELEVISION PROGRAMS, COMMERCIALS, AND ALL ENTERTAINMENT MEDIA
RECORDED IN ANY CURRENT OR TO BE DESIGNED FORMAT WHEN SUCH  USE,  TRANS-
PORTATION  AND  STORAGE  HAS  BEEN  APPROPRIATELY PERMITTED BY THE LOCAL
GOVERNMENTAL SUBDIVISION HAVING JURISDICTION.
  (F)  THE  USE,  TRANSPORTATION  AND  STORAGE  OF  EXPLOSIVES  IN   THE
PRODUCTION  OF  MOTION  PICTURES,  TELEVISION  PROGRAMS, COMMERCIALS AND
SIMILAR ENTERTAINMENT MEDIA PRODUCTION PROVIDED THE USE,  TRANSPORTATION
AND  STORAGE OF EXPLOSIVES ARE UNDER THE CONTROL OF ONE OR MORE INDIVID-
UALS AUTHORIZED BY FEDERAL LAW OR REGULATION TO HANDLE SUCH MATERIAL AND
THAT SUCH EXPLOSIVE MATERIAL IS USED, TRANSPORTED AND STORED AND  OTHER-
WISE HANDLED IN ACCORDANCE WITH FEDERAL LAW OR REGULATION.
  2. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO PROHIBIT:
  (A) ANY MANUFACTURER, WHOLESALER, DEALER OR JOBBER FROM MANUFACTURING,
POSSESSING  OR  SELLING  AT  WHOLESALE  SUCH  FIREWORKS OR SPARKLERS AND
NOVELTIES TO MUNICIPALITIES,  RELIGIOUS  OR  CIVIC  ORGANIZATIONS,  FAIR
ASSOCIATIONS,  AMUSEMENT PARKS, OR OTHER ORGANIZATIONS AUTHORIZED BY THE
STATE TO POSSESS AND USE FIREWORKS OR TO INDIVIDUALS TO POSSESS AND  USE
SPARKLERS AND NOVELTIES;
  (B)  THE  SALE  OR USE OF BLANK CARTRIDGES FOR A MOTION PICTURE, TELE-
VISION PROGRAM, COMMERCIAL AND ALL ENTERTAINMENT MEDIA,  OR  FOR  SIGNAL
PURPOSES IN ATHLETIC SPORTS, OR FOR DOG TRIALS OR DOG TRAINING;
  (C)  THE  USE,  STORAGE, TRANSPORTATION OR SALE OR TRANSFER FOR USE OF
FIREWORKS IN THE PREPARATION FOR OR IN CONNECTION WITH MOTION  PICTURES,
TELEVISION  PROGRAMS,  COMMERCIALS, AND ALL ENTERTAINMENT MEDIA RECORDED
IN ANY CURRENT OR TO BE DESIGNED FORMAT WHEN  SUCH  USE,  TRANSPORTATION
AND  STORAGE  HAS BEEN APPROPRIATELY PERMITTED BY THE LOCAL GOVERNMENTAL
SUBDIVISION HAVING JURISDICTION; OR
  (D) THE MANUFACTURE OR SALE OF FIREWORKS OR SPARKLERS  AND  NOVELTIES,
PROVIDED  THEY  ARE TO BE SHIPPED DIRECTLY OUT OF THE STATE AND ANY SUCH
SPARKLERS AND NOVELTIES ARE SOLD IN ACCORDANCE WITH  THE  PROVISIONS  OF
THIS ARTICLE.
  (E)  EXCEPT  AS SPECIFICALLY PROHIBITED BY ANY OTHER PROVISION OF THIS
ARTICLE, THE SALE BY RETAILERS, OR THE USE, STORAGE, AND  POSSESSION  OF
SPARKLERS AND NOVELTIES THROUGHOUT THE STATE.
  3.  NOTWITHSTANDING  ANY OTHER PROVISION OF THIS ARTICLE, THE MANUFAC-
TURE, SALE, POSSESSION, USE OR STORAGE OF SPARKLERS AND NOVELTIES  SHALL
BE PROHIBITED IN CITIES WITH A POPULATION OF ONE MILLION OR MORE.
S 271.35 SALE OF AMMUNITION NOT PROHIBITED.
  NOTHING  CONTAINED  IN  THIS ARTICLE SHALL BE CONSTRUED TO PREVENT, OR
INTERFERE IN ANY WAY WITH, THE  SALE  OF  AMMUNITION  FOR  REVOLVERS  OR
PISTOLS  OF  ANY KIND, OR FOR RIFLES, SHOTGUNS, OR OTHER ARMS, BELONGING
OR WHICH MAY BELONG TO ANY PERSONS WHETHER AS SPORTING OR HUNTING  WEAP-
ONS OR FOR THE PURPOSE OF PROTECTION TO THEM IN THEIR HOMES, OR, AS THEY
MAY  GO ABROAD; AND MANUFACTURERS ARE AUTHORIZED TO CONTINUE TO MANUFAC-
TURE, AND WHOLESALERS AND DEALERS TO CONTINUE TO DEAL IN AND  FREELY  TO
SELL AMMUNITION TO ALL SUCH PERSONS FOR SUCH PURPOSES.

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S 271.40 UNLAWFUL SALE OF AMMUNITION.
  NOTWITHSTANDING  THE  PROVISIONS OF SECTION 271.35 OF THIS ARTICLE, IT
SHALL BE UNLAWFUL FOR ANY DEALER IN  FIREARMS  TO  SELL  ANY  AMMUNITION
DESIGNED  EXCLUSIVELY FOR USE IN A PISTOL OR REVOLVER TO ANY PERSON, NOT
AUTHORIZED TO POSSESS A PISTOL OR REVOLVER.
  UNLAWFUL SALE OF AMMUNITION IS A CLASS B MISDEMEANOR.
  S 3. Subdivision 4 of section 270.05 of the penal  law,  as  added  by
chapter 286 of the laws of 1978, is amended to read as follows:
  4.    Bank  security  devices  not  prohibited.    Notwithstanding the
provisions of subdivision one of this section, it shall not be  unlawful
for any bank, national banking association, trust company, savings bank,
savings and loan association, industrial bank, or credit union to store,
possess,  transport,  use or cause to discharge any bank security device
as described in subdivision [one] SIX of section [270.00] 271.00 of this
chapter; nor shall it be  unlawful  for  any  manufacturer,  wholesaler,
dealer,  jobber or common carrier to manufacture, store, possess, trans-
port, or sell such a device to  banks,  national  banking  associations,
trust  companies,  savings  banks, savings and loan associations, indus-
trial banks or credit unions.
  S 4. The opening paragraph of subdivision 2 of section 405.00  of  the
penal law is amended to read as follows:
  Notwithstanding the provisions of [section 270.00] ARTICLE TWO HUNDRED
SEVENTY-ONE OF THIS CHAPTER, the permit authority of a state park, coun-
ty  park, city, village or town may upon application in writing, grant a
permit for the public display of fireworks by municipalities, fair asso-
ciations, amusement parks or organizations of individuals. The  applica-
tion for such permit shall set forth:
  S 5. Section 405.05 of the penal law, as amended by chapter 843 of the
laws of 1980, is amended to read as follows:
S 405.05 Seizure and destruction of fireworks.
  Fireworks  possessed  unlawfully  may  be seized by any peace officer,
acting pursuant to his OR HER special duties,  or  police  officer,  who
must  deliver the same to the magistrate before whom the person arrested
is required to be taken. The magistrate must, upon  the  examination  of
the  defendant,  or if such examination is delayed or prevented, without
awaiting such examination, determine  whether  the  fireworks  had  been
possessed  by  the  defendant in violation of the provisions of [section
270.00] ARTICLE TWO HUNDRED SEVENTY-ONE OF THIS CHAPTER; and  if  he  OR
SHE  finds that the fireworks had been so possessed by the defendant, he
OR SHE must cause such fireworks to be destroyed, in a way safe for  the
particular  type  of  such fireworks, or to be delivered to the district
attorney of the county in which the defendant is liable to indictment or
trial, as the interests of justice and public safety may, in his OR  HER
opinion,  require.  Upon  the  conviction of the defendant, the district
attorney must cause to be destroyed, in a way safe  for  the  particular
type  of  such fireworks, the fireworks in respect whereof the defendant
stands convicted, and which  remain  in  the  possession  or  under  the
control of the district attorney.
  S  6. Section 61.07 of the arts and cultural affairs law is amended to
read as follows:
  S 61.07. Use of fireworks  in  entertainment  productions  in  certain
cities.  Notwithstanding  any  other  provision  of law, a city having a
population of one million or more may enact a local law  permitting  and
regulating  the  storage,  transportation,  sale for use or use of fire-
works, as defined in subdivision [one] TWO of section [270.00] 271.00 of
the penal law, in connection with the presentation in whole or  in  part

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of  a  musical,  dramatic, dance, operatic or other stage performance by
performers who appear in person in the immediate presence  of  an  audi-
ence,  which  is  held in any building or part of a building adapted and
used  for  such  purpose or which has a stage for such performances used
with scenery or other stage appliances, and to which admission is limit-
ed to persons holding admission tickets or other evidence of  permission
to enter, or in connection with the production of motion pictures.
  S 7. This act shall take effect on the first of November next succeed-
ing  the  date  on  which it shall have become a law and shall remain in
full force and  effect  until  November  1,  2014,  at  which  time  the
provisions of this act shall expire and be deemed repealed.