AN ACT Relating to explosives and destructive devices; amending RCW 9A.32.030; adding a new chapter to Title 9A RCW; adding new sections to chapter 70.74 RCW; adding a new section to chapter 70.98 RCW; repealing RCW 9.61.160, 9.61.170, and 9.61.180; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. As used in this chapter, the following terms have the meanings indicated unless the context clearly requires otherwise.

(1) "Department" means the department of labor and industries.

(2) "Destructive device" means:

(a) Any projectile containing any explosive or incendiary or nuclear material or any other chemical substance, including, but not limited to, that which is commonly known as tracer or incendiary ammunition or component parts thereof, except tracer ammunition manufactured for use in shotguns;

(b) Any bomb, seal bomb, grenade, explosive missile, or similar device or any launching device or component parts thereof;

(c) Any weapon of a caliber greater than .50 caliber which fires fixed ammunition, or any ammunition therefor, other than a shotgun or shotgun ammunition;

(d) Any rocket, rocket-propelled projectile, or similar device of a diameter greater than 0.50 inch, or any launching device therefor, and any rocket, rocket-propelled projectile, or similar device containing any explosive or incendiary material or any other chemical substance, other than the propellant for such device, except such devices as are designed primarily for emergency or distress signaling purposes;

(e) Any breakable container which contains a flammable liquid with a flashpoint of one hundred fifty degrees Fahrenheit or less and has a wick or similar device capable of being ignited, other than a device which is commercially manufactured primarily for the purpose of illumination; or

(f) Any combination of parts designed or intended for use in converting any device into a destructive device under (a) through (e) of this subsection and from which a destructive device under (a) through (e) of this subsection may be readily assembled.

(3) "Director" means the director of labor and industries.

(4) "Explosives" means any substance, or combination of substances, the primary or common purpose of which is to cause a relatively instantaneous or rapid release of gas and heat, or any substance, the primary purpose of which, when combined with others, is to cause a relatively instantaneous or rapid release of gas and heat.

The term "explosives" does not include any destructive device nor does it include ammunition or small arms primers manufactured for use in shotguns, rifles, and pistols.

(5) "Classified explosives" means explosives which are classified by the United States department of transportation or the director of community development through the director of fire protection and include but are not limited to the following:

(a) Substances determined to be class A and class B explosives as classified by the United States department of transportation;

(b) Nitro carbo nitrate substances (blasting agent) as classified by the United States department of transportation;

(c) Any material designated as an explosive by the director of community development, through the director of fire protection. Such designation shall be made pursuant to the classification standards established by the United States department of transportation. The director of community development, through the director of fire protection, shall adopt rules to establish procedures for the classification and designation of explosive materials or explosive devices that are not under the jurisdiction of the United States department of transportation;

(d) Certain class C explosives as designated by the United States department of transportation when listed in rules adopted by the director of community development, through the director of fire protection.

(6) "Unclassified explosives" means all explosives which are not classified explosives.

NEW SECTION. Sec. 2. Possession of a destructive device is prima facie evidence that it would be used for unlawful purposes.

NEW SECTION. Sec. 3. Nothing in this chapter prohibits the sale to, purchase by, possession of, or use of destructive devices by:

(1) Any peace officer while on duty and acting within the scope and course of employment;

(2) Any member of the army, navy, coast guard, air force, or marine corps of the United States, the national guard, or the state militia while on duty and acting within the scope and course of employment.

NEW SECTION. Sec. 4. Nothing in this chapter prohibits the sale to, purchase by, possession by, or use by any person who is a regularly employed and paid officer, employee, or member of a fire department or fire protection or fire fighting agency of the federal government, the state of Washington, a city, county, city and county, district, or other public or municipal corporation or political subdivision of this state, while on duty and acting within the scope and course of employment, of any equipment used by such department or agency in the course of fire suppression.

NEW SECTION. Sec. 5. No person may possess a destructive device or any device so designed, assembled, fabricated, or manufactured as to convey the physical appearance of an explosive or incendiary bomb, or any explosive substance, or noxious liquid, gas, or substance, except as provided in this chapter. Violation of this section is a class B felony.

NEW SECTION. Sec. 6. No person may, within this state, sell, offer for sale, possess, or knowingly transport any destructive device or component parts thereof, other than fixed ammunition of a caliber greater than .50 caliber, except as provided in this chapter. Violation of this section is a class B felony.

NEW SECTION. Sec. 7. (1) Every dealer, manufacturer, importer, and exporter of any destructive device, or any motion picture or television studio using destructive devices in the conduct of its business, shall obtain a permit for the conduct of the business from the department. The permit shall be issued upon a satisfactory showing that good cause exists for the issuance thereof and after the payment of a fee of fifty dollars. The permit shall be valid for a period of one year only.

(2) Any person other than those included in subsection (1) of this section shall obtain a permit from the department before possessing or transporting any destructive device. The department shall investigate the request and may issue such a permit upon a satisfactory showing that good cause exists for the issuance thereof, and after the payment of a fee of fifty dollars. The director shall issue a permit without payment of a fee upon a satisfactory showing that the possessor of the destructive device is a bona fide collector of destructive devices. The permit shall be valid for a period of one year only.

NEW SECTION. Sec. 8. The possession of any destructive device in violation of this chapter is a public nuisance and the prosecutor of any city, county, or city and county may bring an action in the superior court to enjoin the possession of any such destructive device.

NEW SECTION. Sec. 9. Any destructive device possessed in violation of this chapter shall be surrendered to any peace officer for investigation, and the peace officer shall destroy such destructive device so as to render it unusable and irreparable as a destructive device unless the prosecuting attorney files a certificate with the superior court stating that the preservation of the destructive device is necessary to serve the ends of justice.

NEW SECTION. Sec. 10. Sections 11 through 29 of this act do not apply to any of the following:

(1) Any person engaged in the transportation of explosives under chapter 70.74 RCW.

(2) Small arms ammunition of .75 caliber or less when designated as a class C explosive by the United States department of transportation.

(3) Fireworks regulated under chapter 70.77 RCW, including, but not limited to, special-effects pyrotechnics regulated by the director of community development, through the director of fire protection.

(4) Any explosives while in the course of transportation via railroad, aircraft, water, or highway when the explosives are in actual movement and under the jurisdiction of and in conformity with regulations adopted by the United States department of transportation, United States coast guard, or the federal aviation administration. However, no explosives may be sold, given away, or delivered except as provided in chapter 70.74 RCW.

(5) Special fireworks classified by the United States department of transportation as class B explosives when such special fireworks are regulated under chapter 70.74 RCW.

(6) Black powder in quantities of five pounds or less and smokeless powder in quantities of twenty pounds or less used, possessed, stored, sold, or transported that is exempted under, or authorized by, the Federal Organized Crime Control Act of 1970, Public Law 91-452, and applicable federal regulations thereunder.

NEW SECTION. Sec. 11. Except when transporting explosives on highways and at safe stopping places established by the department in conjunction with local city or county police/sheriff jurisdiction, this chapter does not affect the operation of provisions of any city, county, or city and county ordinance respecting the delivery, storage, and handling of explosives which are at least as restrictive as the provisions of this chapter.

This chapter does not apply to the transportation and use of explosives by representatives of the Washington state patrol, the state crime labs, city police departments, sheriff's departments, and fire departments acting in their official capacity, nor does it apply to the transportation and use of explosives by any peace officer while enforcing this chapter.

NEW SECTION. Sec. 12. (1) No person may sell, give away, or transport any unclassified explosive.

(2) The director, upon receiving an application from any interested party, with the concurrence of the city police department and/or the sheriff's department in the area affected, may authorize the transportation of unclassified explosives if all other provisions of this chapter are met and if the director determines that such action may be taken without jeopardizing the public welfare and safety.

NEW SECTION. Sec. 13. No explosive may be sold, furnished, or given to any person under twenty-one years of age, whether such person is acting for himself or herself or for another person, nor may any such person be eligible to obtain any permit to receive explosives.

NEW SECTION. Sec. 14. Except for representatives of the United States department of the treasury, the director or the director's representative, the owner, a person authorized to enter by the owner, and the owner's agent, no person may enter any explosive manufacturing plant, magazine, or vehicle containing explosives.

NEW SECTION. Sec. 15. No person may make, possess, or transport any explosive in a manner prohibited by this chapter or prohibited by any ordinance of a city, county, or city and county, or prohibited by the laws or regulations governing a harbor in those areas where such ordinance, laws, or regulations apply.

NEW SECTION. Sec. 16. Any theft or loss of explosives, whether from a storage magazine, a vehicle in which they are being transported, or from a site on which they are being used, or from any other location, shall immediately be reported by the person having control of such explosives to the city police or county sheriff. The city police or county sheriff shall immediately transmit a report of such theft or loss of explosives to the director and the chief of the Washington state patrol in Olympia.

NEW SECTION. Sec. 17. No person may abandon or otherwise dispose of any explosive in any manner which might, as the result of the abandonment or disposal, create any danger or threat of danger to life or property. Any person in possession or control of explosives required in the performance of his or her duties shall, when the need for the explosives no longer exists, either return the explosives to the source from which the explosives were obtained or to an appropriate issuing authority for disposal or destroy the explosives in a safe manner so as not to make them available to persons who might obtain them and use them in a manner prejudicial to the safety of life and property. When the need for such storage no longer exists and the explosives have been removed or disposed of as required in this section, magazines or temporary magazines used for storage purposes in any area where blasting is required shall be removed or demolished, or signs, indicating the presence of explosives in such magazines or on the premises on which such magazines are located, shall be removed or effectively obliterated, and the issuing authority who issued the storage permit shall be immediately notified of the action taken.

NEW SECTION. Sec. 18. Every person who knowingly possesses any explosive unlawfully is guilty of a class C felony.

NEW SECTION. Sec. 19. (1) Except as otherwise provided, any unclassified explosives which are sold, given away, or transported without a permit shall be subject to immediate seizure by any peace officer.

(2) Any explosives which are illegally manufactured, sold, given away, delivered, stored, used, possessed, or transported shall be subject to immediate seizure by any peace officer.

NEW SECTION. Sec. 20. Any explosive seized under this chapter shall be stored in an approved manner and in accordance with rules adopted by the department. The person from whom the explosives have been seized may within ten days after the seizure petition the director to return the explosives upon the ground that the explosives were illegally or erroneously seized. Any such petition shall be filed with the director and shall be considered by the director within fifteen days after filing. An oral hearing shall be granted to the petitioner if requested. Notice of the decision of the director shall be served upon the petitioner.

NEW SECTION. Sec. 21. If the director finds that the explosives were illegally or erroneously seized, the explosives shall be returned to the petitioner. The determination of the director is final unless, within sixty days of the notice served pursuant to this chapter, an action is commenced in a court of competent jurisdiction in the state of Washington for the recovery of the explosives seized by the police.

NEW SECTION. Sec. 22. If no petition is received by the director within ten days of seizure of any explosive, or if no action is commenced in a court of competent jurisdiction in the state of Washington within sixty days of the notice served pursuant to this chapter, the director may dispose of the seized explosives in any manner which will not jeopardize the public welfare and safety. When any explosive is disposed of pursuant to this section, the person from whom the explosives were seized shall have no legal redress against the director because of the disposal of the explosives.

NEW SECTION. Sec. 23. When the death of any person is caused by the explosion of any destructive device or explosive while the same is being delivered to any carrier or while the same is being transported or is being removed from the vehicle on which it has been transported or conveyed or on which it has been placed for transportation, every person who knowingly and unlawfully placed, aided, or permitted the placing of such article or substance on the vehicle, or delivered the same, or caused the same to be delivered contrary to this chapter, is guilty of a class B felony.

NEW SECTION. Sec. 24. (1) Any person who reports to any police officer, sheriff, employee of a fire department or fire service, prosecuting attorney, newspaper, radio station, television station, deputy sheriff, deputy district attorney, member of the Washington state patrol, employee of the department of justice, employee of an airline, employee of an airport, employee of a railroad or busline, employee of a telephone company, occupant of a building, or news reporter in the employ of a newspaper or radio or television station, that a bomb or other explosive has been or will be placed or secreted in any public or private place knowing that the report is false, is guilty of a class C felony.

(2) Any person who informs any other person that a bomb or other explosive has been or will be placed or secreted in any public or private place, knowing that the information is false, is guilty of a gross misdemeanor.

(3) Any person who gives, mails, sends, or causes to be sent any false or facsimile bomb to another person, or places or causes to be placed any false or facsimile bomb that any other person thinks is a real bomb, with knowledge that it is a false or facsimile bomb is guilty of a class C felony.

NEW SECTION. Sec. 25. No person convicted of a violation of this chapter shall be granted probation, and the sentence imposed upon such person shall not be suspended by the court.

NEW SECTION. Sec. 26. Every person who possesses any substance, material, or any combination of substances or materials, or component parts thereof, with the intent to make any destructive device or any explosive without first obtaining a license under chapter 70.74 RCW to make the destructive device or explosive, is guilty of a class C felony.

NEW SECTION. Sec. 27. Every person who knowingly does any of the following is guilty of a class B felony:

(1) Carries any explosive or destructive device on any vessel, aircraft, automobile, or other vehicle that transports passengers for hire;

(2) Places or carries any explosive or destructive device in any hand baggage, roll, or other container while on board any vessel, aircraft, automobile, or other vehicle that transports passengers for hire;

(3) Places any explosive or destructive device in any baggage which is later checked with any common carrier.

NEW SECTION. Sec. 28. Every person who unlawfully explodes, ignites, or attempts to explode or ignite any destructive device or any explosive is guilty of a class B felony.

NEW SECTION. Sec. 29. Every person who unlawfully explodes or ignites any destructive device or any explosive which causes bodily injury to any person is guilty of a class A felony.

Sec. 30. Section 9A.32.030, chapter 260, Laws of 1975 1st ex. sess. as amended by section 3, chapter 38, Laws of 1975-'76 2nd ex. sess. and RCW 9A.32.030 are each amended to read as follows:

(1) A person is guilty of murder in the first degree when:

(a) With a premeditated intent to cause the death of another person, he causes the death of such person or of a third person; or

(b) Under circumstances manifesting an extreme indifference to human life, he engages in conduct which creates a grave risk of death to any person, and thereby causes the death of a person; or

(c) He commits or attempts to commit the crime of either (1) robbery, in the first or second degree, (2) rape in the first or second degree, (3) burglary in the first degree, (4) arson in the first degree, or (5) kidnapping, in the first or second degree, and; in the course of and in furtherance of such crime or in immediate flight therefrom, he, or another participant, causes the death of a person other than one of the participants; except that in any prosecution under this subdivision (1)(c) in which the defendant was not the only participant in the underlying crime, if established by the defendant by a preponderance of the evidence, it is a defense that the defendant:

(i) Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and

(ii) Was not armed with a deadly weapon, or any instrument, article, or substance readily capable of causing death or serious physical injury; and

(iii) Had no reasonable grounds to believe that any other participant was armed with such a weapon, instrument, article, or substance; and

(iv) Had no reasonable grounds to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury; or

(d) Under circumstances which manifest an extreme indifference to human life or which creates a grave risk of death to any person, and thereby causes the death of a person, he explodes or ignites any destructive device or any explosive.

(2) Murder in the first degree is a class A felony.

NEW SECTION. Sec. 31. Every person who explodes or ignites any destructive device or any explosive under circumstances which manifest an extreme indifference to human life or which creates a grave risk of harm to any person, which causes mayhem or great bodily injury to any person is guilty of a felony, and shall be punished by imprisonment in the state prison for life.

NEW SECTION. Sec. 32. Nothing in this chapter affects any existing ordinance, rule, or regulation pertaining to explosives of any incorporated city or town in this state not less restrictive than the provisions of this chapter and rules adopted pursuant thereto.

NEW SECTION. Sec. 33. Nothing in this chapter prohibits the importation, purchase, sale, or use of fireworks used or to be used solely to frighten birds from agricultural works and fish hatcheries.

NEW SECTION. Sec. 34. The Washington state patrol may carry small amounts of class A, B, and C explosives on Washington state ferries and vessels used by the department of corrections to service McNeil Island.

NEW SECTION. Sec. 35. (1) A person who sustains injury to his or her person, business, or property by an act in violation of this chapter may file an action in superior court for the recovery of damages and the costs of the suit, including reasonable investigative and attorney's fees. The attorney general or county prosecuting attorney may file an action on behalf of those persons injured or, respectively, on behalf of the state or county if the entity has sustained damages. An action for damages filed by or on behalf of an injured person, the state, or the county shall be for the recovery of damages and the costs of the suit, including reasonable investigative and attorney's fees.

(2) Following a determination of liability under subsection (1) of this section, orders may include, but are not limited to:

(a) Ordering the payment of actual damages sustained to those persons injured by a violation of this chapter, and in the court's discretion, increasing the payment to an amount not exceeding three times the actual damages sustained.

(b) Ordering the payment of all costs and expenses of the prosecution and investigation, civil and criminal, incurred by the state or county as appropriate to the state general fund or the county current expense fund.

(c) Ordering forfeiture first as restitution to any person damaged then to the state general fund or county current expense fund, as appropriate, to the extent not already ordered to be paid in other damages, of the following:

(i) Any property, contractual right, or claim against property used to influence any activity that a person has established, operated, controlled, conducted, or participated in the conduct of, in violation of this chapter.

(ii) All proceeds traceable to or derived from an offense in violation of this chapter and all moneys, negotiable instruments, securities, and other things of value significantly used or intended to be used significantly to facilitate commission of the offense.

(3) In addition to or in lieu of an action under this section, the attorney general or county prosecuting attorney may file an action for forfeiture to the state general fund or county current expense fund, as appropriate, to the extent not already ordered paid pursuant to this section, of the following:

(a) Any property, contractual right, or claim against property used to influence any activity that a person has established, operated, controlled, conducted, or participated in the conduct of, in violation of this chapter.

(b) All proceeds traceable to or derived from an offense in violation of this chapter and all moneys, negotiable instruments, securities, and other things of value significantly used or intended to be used significantly to facilitate the commission of the offense.

(4) A defendant convicted in any criminal proceeding is precluded in any civil proceeding from denying the essential allegations of the criminal offense proven in the criminal trial in which the defendant was convicted. For the purposes of this subsection, a conviction shall be deemed to have occurred upon a verdict, finding, or plea of guilty, notwithstanding the fact that appellate review of the conviction and sentence has been or may be sought. If a subsequent reversal of the conviction occurs, any judgment that was based upon that conviction may be reopened upon motion of the defendant.

(5) The initiation of civil proceedings under this section shall be commenced within three years after discovery of the violation of this chapter or after the violation should reasonably have been discovered.

(6) The attorney general or county prosecuting attorney may, in a civil action brought pursuant to this section, file with the clerk of the superior court a certificate stating that the case is of special public importance. A copy of that certificate shall be furnished immediately by the clerk to the presiding chief judge of the superior court in which the action is pending and, upon receipt of the copy, the judge shall immediately designate a judge to hear and determine the action. The judge so designated shall promptly assign the action for hearing, participate in the hearings and determination, and cause the action to be expedited.

(7) The standard of proof in actions brought pursuant to this section is the preponderance of the evidence test.

(8) A person other than the attorney general or county prosecuting attorney who files an action under this section shall serve notice and one copy of the pleading on the attorney general within thirty days after the action is filed with the superior court. The notice shall identify the action, the person, and the person's attorney. Service of the notice does not limit or otherwise affect the right of the state to maintain an action under this section or intervene in a pending action nor does it authorize the person to name the state or the attorney general as a party to the action.

(9) Except in cases filed by a county prosecuting attorney, the attorney general may, upon timely application, intervene in any civil action or proceeding brought under this section if the attorney general certifies that in the attorney general's opinion the action is of special public importance. Upon intervention, the attorney general may assert any available claim and is entitled to the same relief as if the attorney general had instituted a separate action.

(10) A private civil action under this section does not limit any other civil or criminal action under this chapter or any other provision. Private civil remedies provided under this section are supplemental and not mutually exclusive.

(11) Upon motion by the defendant, the court may authorize the sale or transfer of assets subject to an order authorized by this section for the purpose of paying actual attorney's fees and costs of defense. The motion shall specify the assets for which sale or transfer is sought and shall be accompanied by the defendant's sworn statement that the defendant has no other assets available for such purposes. No order authorizing such sale or transfer may be entered unless the court finds that the assets involved are not subject to possible forfeiture under subsection (2)(c) of this section. Prior to disposition of the motion, the court shall notify the state of the assets sought to be sold or transferred and shall hear argument on the issue of whether the assets are subject to forfeiture under subsection (2)(c) of this section. Such a motion may be made from time to time and shall be heard by the court on an expedited basis.

(12) In an action brought under subsection (1) of this section, either party has the right to a jury trial.

NEW SECTION. Sec. 36. A new section is added to chapter 70.74 RCW to read as follows:

No city, town, or county may require explosive disposal units of the state, a county, a city or town, or a fire department to placard vehicles used in the transportation of explosives or destructive devices or display placards when parked.

NEW SECTION. Sec. 37. A new section is added to chapter 70.74 RCW to read as follows:

No fees may be charged to explosives unit members for a user's (blaster's) license or a purchaser's license nor to the state, county, or city for explosive magazine license or inspection.

NEW SECTION. Sec. 38. A new section is added to chapter 70.98 RCW to read as follows:

No fee may be charged for state, county, or city explosives units or bomb squads using x-ray machines in the course of their explosives unit duties.

NEW SECTION. Sec. 39. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 40. The following acts or parts of acts are each repealed:

(1) Section 1, chapter 141, Laws of 1959, section 1, chapter 231, Laws of 1977 ex. sess. and RCW 9.61.160;

(2) Section 2, chapter 141, Laws of 1959 and RCW 9.61.170; and

(3) Section 3, chapter 141, Laws of 1959, section 2, chapter 231, Laws of 1977 ex. sess. and RCW 9.61.180.

NEW SECTION. Sec. 41. Sections 1 through 29 and 31 through 35 of this act shall constitute a new chapter in Title 9A RCW.