WSR 14-24-043 PROPOSED RULES WASHINGTON STATE PATROL [Filed November 24, 2014, 4:02 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 14-17-107.
Title of Rule and Other Identifying Information: Chapter 212-17 WAC, Fireworks.
Hearing Location(s): General Administration (GA) Building, Room G-3, 210 11th Avenue, Olympia, WA 98504-2600, on January 6, 2015, at 1:00 p.m.
Date of Intended Adoption: January 7, 2015.
Submit Written Comments to: Dan Johnson, P.O. Box 42642, Olympia, WA 98501-2642, e-mail dan.johnson@wsp.wa.gov, fax (360) 596-3913, by January 2, 2015.
Assistance for Persons with Disabilities: Contact Melissa Van Gorkom by January 2, 2015, (360) 596-4017.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed changes will include but may not be limited to:
Reasons Supporting Proposal: Provide clarification regarding the process. Clearly articulate restrictions, requirements and penalties which will reduce liability and increase public safety.
Statutory Authority for Adoption: RCW 70.77.250.
Statute Being Implemented: Chapter 70.77 RCW.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Washington state department of transportation, governmental.
Name of Agency Personnel Responsible for Drafting and Implementation: Dan Johnson, GA Building, P.O. Box 42642, Olympia, WA 98504, (360) 596-3913; and Enforcement: WSP Fire Protection Bureau, GA Building, P.O. Box 42642, Olympia, WA 98504, (360) 596-4000.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
Small Business Economic Impact Statement
SUMMARY OF PROPOSED RULES: The Washington state patrol, fire protection bureau (FPB), licensing section is proposing amendments to chapter 212-17 WAC, Fireworks.
The purpose of the chapter is to develop rules to implement the state fireworks law from chapter 70.77 RCW.
The proposed major changes to the chapter are:
SMALL BUSINESS ECONOMIC IMPACT STATEMENT (SBEIS)—DETERMINATION OF NEED: Chapter 19.85 RCW, the Regulatory Fairness Act, requires that the economic impact of proposed regulations be analyzed in relation to small businesses. The statute defines small businesses as those business entities that employ fifty or fewer people and are independently owned and operated.
These proposed rules impact fireworks manufacturers, importers, wholesalers, retail sales and pyrotechnic companies. These businesses fall under the following North American Industry Classification System (NAICS) codes:
Preparation of an SBEIS is required when a proposed rule has the potential of placing a disproportionate economic impact on small businesses. The statute outlines information that must be included in an SBEIS.
The fireworks licensing section has analyzed the proposed rule amendments and has determined that small businesses will be impacted by these changes, with some costs considered "more than minor" and disproportionate to small businesses.
INDUSTRY ANALYSIS: The fireworks licensing section is responsible for the issuance of fireworks licenses to manufacturers, importers, wholesalers, retail sales, general display and pyrotechnic operators licenses. As part of their licensing and monitoring, the program maintains an internal database of current and past fireworks licensees. Using this database gives more accurate information about impacted small businesses for this analysis than the four-digit NAICS codes.
The fireworks licensing section has determined that there are no known existing agencies that meet the criteria for small businesses under RCW 19.85.020. These proposed rules impact those with or without a fireworks license.
INVOLVEMENT OF SMALL BUSINESSES: A number of the proposed changes were brought forward through discussions with fourteen stakeholders representing both consumer and display fireworks companies and individuals who are fireworks licensees. Seven stakeholders were fire marshals from city and county jurisdictions.
The defining and identification of violations and associated penalties for noncompliance would apply to a releative [relatively] small number of licensees. Most violations are committed by persons not requiring a license.
COST OF COMPLIANCE: Under chapter 19.85 RCW, the licensing section has considered annual costs to small businesses that are fifty dollars or more per licensee. To consider the cost of compliance, FPB has elected to look at cost per type of license. This is because several licenses are issued by the FPB and each license allows for a different activity to occur.
Two licenses have potential costs to small businesses that could exceed fifty dollars per license. These would be the fireworks importer and retail fireworks licenses.
Those licenses issued to a fireworks wholesaler, importer and manufacturer would see potentially the largest penalties based upon a penalty per package. Penalties of this nature have been rarely issued as the this violation hasn't been clearly defined or identified. A licensee would only be issued a civil penalty if they are importing, selling or possessing illegal fireworks. The number of violations are not anticipated to increase.
General Costs: The licensing section analysis revealed that there are costs imposed by the proposed amendments. These cost are associated with the identification of rule violations and penalty assessment.
Specific Cost - Fireworks Testing: WAC 212-17-015 requires that all fireworks meet the testing requirements established by APA 87-1, U.S. DOT regulations and Consumer Product Safety Commission (CPSC) standards. This would apply to an importer of fireworks. Fireworks that are imported into Washington come primarily from China. To ensure these fireworks meet the requirements of a consumer firework, they are subject to inspection and testing by the U.S. CPSC. Other states allow only those fireworks that are third-party tested to be sold.
Of the twenty-six licensed importers:
There is no membership or annual fee for third-party testing. The shipper pays a fee of $.50 per box that is tested and shipped. A random sampling based on the number of boxes in a shipment are tested for compliance before it leaves the manufacturer in China[.] Fireworks that pass the testing are then approved for shipment to [the] United States. A sticker is applied to the boxes to show that this testing was conducted.
WAC 204-17-085 requires documentation to be presented to show compliance with testing as well. This requirement will not add additional costs to the importer as the U.S. CPSC already requires these records to be maintained. WAC 212-17-145 provides that a licensed importer who has a shipment of imported fireworks inspected and tested by the CPSC that do not meet the federal standards to join a firework trade association as part of mitigating any penalty issued.
The cost of joining a trade related organization is between $100 and $375 for individuals and a business between $1,300 and $10,000 which is based on the gross sales.
The penalty for importing fireworks that do not meet federal standards that were not third-party tested is $100 per box. Joining a trade association, mitigating the civil penalty is intended to gain compliance and prevent the importation of illegal fireworks.
Specific Cost - Retail Firework Sales - Signage: Adopting the NFPA standard 1124 would impact all of the retail fireworks sales facilities as the distance for "No Fireworks Discharge" and "No Smoking" would change. Currently the rules require a distance of one hundred feet for no fireworks discharge and twenty feet for smoking so that signs read:
The adopted standard changes the distances to three hundred feet for fireworks discharge and fifty feet for no smoking, therefore the new signs would need to be purchased to read:
Surveying three fireworks wholesalers (small, medium and largest), that together account for fifty-two percent of all of the retail fireworks licenses purchased, they didn't foresee an increase cost in replacing signs as they only use the signs for one sales season. Additionally, the current inventory of signs could easily be altered until the inventory is exhausted. The cost to fix existing signs would be less than five dollars for all signs.
If new signs were to be purchased the cost would vary upon the material the sign was printed on. Paper signs average $3 each or $24 per license. Signs made of aluminum or plastic average $24 each $144 per license. Using the median, the average cost would be $84 per retail license to replace their signs.
TOTAL COST: The total anticipated cost for a licensee would be for the signs and depending on if they are replacing permenant [permanent] signs or disposable signs the cost would be less than $100.
DISPROPORTIONATE ECONOMIC IMPACT ANALYSIS: When proposed rule changes cause more than minor costs to small businesses, the Regulatory Fairness Act requires an analysis that compares these costs between small businesses and ten percent of the largest businesses.
Why the cost would appear to be considered disproportionate is that the assessment of penalties in some instances would be based upon the number of packages in violation. A penalty based on the number of packages in violation. A container of illegal fireworks would have the same penalty issued but depending on the company size or revenue this would appear disportionate [disproportionate]. The impact of any assessed penalty or suspension of a license would vary by the affected size of the licensee.
MITIGATING COSTS: The licensing section has plans for mitigating disproportionate costs for small businesses by offering an informal hearing process in which penalties can be mitigated based upon severity and contractor compliance.
Mitigating the cost of the signs may not be possible. During the meeting with the stakeholders, both the industry and enforcement representatives were in favor of increasing the distance for no discharge of fireworks. The no smoking signs will need to be changed from the current twenty feet to a minimum of twenty-five feet regardless of the adoption of the NFPA standard. Another state law prohibits smoking closer than twenty-five feet from any building.
EVALUATION OF PROBABLE COST AND PROBABLE BENEFITS: Since the proposed amendments "make significant amendments to a policy or regulatory program" under RCW 34.05.328 (5)(c)(iii), the FPB has determined the proposed rules to be "significant" as defined by the legislature.
As required by RCW 34.05.328 (1)(d), the FPB has analyzed the probable costs and probable benefits of the proposed amendments, taking into account both the qualitative and quantitative benefits and costs.
BENEFITS FOR PROPOSED RULES: The benefit of the proposed rule changes is that it clearly articulates the violations associated with specific rules and penalties which should aid local law enforcement and fire officials when taking enforcement action.
The rule has also adopted the standards developed by NFPA and the APA for storage, use and construction of fireworks. Adoption of these national standard[s] will provide consistency between jurisdictions.
JOBS CREATED OR LOST: The licensing section does not believe any jobs will be lost as a result of small businesses complying with these rules. The current rules outline certain requirements be met of licensees. The general requirements under the proposed rules [rule] changes have not changed so the agency does not anticipate that there will be an impact on jobs.
CONCLUSION: The licensing section has given careful consideration to the impact of proposed rules in chapter 212 [212-17] WAC, Fireworks on small businesses. To comply with the Regulatory Fairness Act, chapter 19.85 RCW, the licensing section has analyzed impacts on small businesses and proposed ways to mitigate costs considered more than minor and disproportionate.
Please contact Dan Johnson if you have any questions at (360) 596-3913.
A copy of the statement may be obtained by contacting Melissa Van Gorkom, P.O. Box 42600, Olympia WA 98504-2600, phone (360) 596-4017, fax (360) 596-4015, e-mail WSPRules@wsp.wa.gov.
A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Melissa Van Gorkom, P.O. Box 42600, Olympia WA 98504-2600, phone (360) 596-4017, fax (360) 596-4015, e-mail WSPRules@wsp.wa.gov.
November 24, 2014
John R. Batiste
Chief
AMENDATORY SECTION (Amending WSR 82-22-068, filed 11/2/82)
WAC 212-17-015 Scope.
These rules apply to ((fireworks)) the manufacture, storage, transportation, sale, importation, possession, classification, and discharge of fireworks of every class or kind in this state and improvised explosive device (IED).
NEW SECTION
WAC 212-17-017 Preemption.
(1) The state of Washington does not preempt a city or county from imposing as authorized in RCW 70.77.250(4) where a city or county may enact an ordinance that imposes the following:
(a) Ban the use and sale of fireworks.
(b) Restrict the dates of sale, purchase, possession, and use of fireworks.
(c) If sales and use are allowed, may restrict the types of fireworks that can be:
(i) Sold;
(ii) Purchased; or
(iii) Used within its boundaries.
(2) Any such ordinance that is more restrictive than state law must have an effective date no sooner than one year after their adoption.
(3) In those cities or counties that allow the sale, purchase, and use of consumer fireworks, the state of Washington preempts the city or county as authorized in RCW 70.77.270(2) to establish the minimum statewide standards for consumer fireworks retail sales facilities (CFRS) as defined in WAC 212-17-028.
(a) The use of temporary structures for the temporary sale or storage of consumer fireworks is exempt from the International Building Code, International Fire Code, and local ordinances.
(b) Exception: Where a city or county ordinance regulates the sale or use of fireworks as a part of that city's or that county's building code or fire code, those provisions of that county's or that city's building code or fire code which are not in conflict with this rule are not hereby preempted or affected.
(4) Where a city or county allows CFRS the following rules constitute the entire and exclusive authority for regulation and preempt a city or county authority to enact or enforce any other regulations that are more restrictive than the minimum requirements.
(5) The preemption of local jurisdiction is specific, but not limited to:
(a) Types of structure and construction material that may be used.
(b) Operation of CFRS.
(c) Area around the CFRS:
(i) Setback requirements;
(ii) Siting of property;
(iii) Required flagging;
(iv) Clean up, location of, areas surrounding, after the use of said structure;
(v) Signage.
(d) Transportation of fireworks to and from the CFRS.
(e) Temporary storage of fireworks associated with the CFRS.
(6) The use of temporary structures for the temporary sale or storage of consumer fireworks is exempt from the International Building Code, International Fire Code, and local ordinances except that where a city or county ordinance regulates the sale or use of fireworks as a part of that city's or that county's building code or fire code, those provisions of that county's or that city's building code or fire code which are not in conflict with this rule are not hereby preempted or affected.
NEW SECTION
WAC 212-17-021 Adoption of code.
(1) The state fire marshal adopts the following standards in effect on the effective date of this section unless otherwise outlined in this chapter:
(a) National Fire Protection Association (NFPA) codes:
(i) NFPA 140 2013 edition, Standard on motion picture and television production, studio soundstages, approved production facilities, and production locations.
(ii) NFPA 160 2011 edition, Standard for the use of flame effects before an audience.
(iii) NFPA 1123 2013 edition, Code for fireworks display.
(iv) NFPA 1124 August 2012 edition, Code for the manufacture, transportation, storage, and retail sales of fireworks and pyrotechnic articles.
(v) NFPA 1126 2011 edition, Standard for the use of pyrotechnics before a proximate audience.
(b) American Pyrotechnic Association (APA) standard:
(i) APA Standard 87-01 2004 edition, Standard for construction and approval for transportation of fireworks, novelties, and theatrical pyrotechnics.
(ii) All fireworks devices will meet the following chemical content, design, and construction requirements required in APA 87-01.
(2) If there is a conflict between a standard and rule, the standard will be followed unless the rule is more stringent.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-025 Definition and classification—"Fireworks."
((The term "fireworks" shall mean any composition or device for the purpose of producing a visible or an audible effect by combustion, deflagration, or detonation, and which meets the definition of articles pyrotechnic, consumer, or display fireworks.)) (1) Consumer fireworks as defined in RCW 70.77.136 includes the following devices manufactured in accordance with the American Pyrotechnics Association Standards outlined in WAC 212-17-021:
(a) Ground and hand-held sparkling devices.
(i) Wire sparkler/dipped stick. These devices consist of a metal wire or wood dowel that has been coated with pyrotechnic composition. Upon ignition of the tip of the device, a shower of sparks is produced.
(A) Sparklers may contain up to 100 grams of pyrotechnic composition per item.
(B) Sparklers typically use:
(I) Barium nitrate as the oxidizer, with aluminum and dextrine as fuels.
(II) Iron filings produce the spark effect.
(III) Color-producing sparklers use potassium perchlorate as an oxidizer.
(C) Any sparkler containing a chlorate or perchlorate oxidizer is limited to a maximum of 5 grams of composition per article.
(D) Items not included in Division 1.4, 1.5, or 1.6 explosives under DOT regulations, are included in this category.
(ii) Cylindrical fountain. Cylindrical tubes containing not more than 75 grams of pyrotechnic composition. Upon ignition, a shower of colored sparks, and sometimes a whistling effect is produced. This device may be provided with a spike for insertion into the ground (spike fountain), a wood or plastic base for placing on the ground (base fountain), or a wood or cardboard handle, if intended to be hand-held (handle fountain). When more than one tube is mounted on a common base, total pyrotechnic composition may not exceed 200 grams.
(iii) Cone fountain. Cardboard or heavy paper cone containing not more than 50 grams of pyrotechnic composition. The effect is the same as that of a cylindrical fountain. When more than one cone is mounted on a common base, total pyrotechnic composition may not exceed 200 grams.
(iv) Illuminating torch. Cylindrical tube containing not more than 100 grams of pyrotechnic composition that produces a colored flame upon ignition. May be spike, base or hand-held. When more than one tube is mounted on a common base, total pyrotechnic composition may not exceed 200 grams.
(v) Wheel. Pyrotechnic device intended to be attached to a post or tree by means of a nail or string. May have one or more drivers, each of which may not contact more than 60 grams of pyrotechnic composition. No wheel may contain more than 200 grams total pyrotechnic composition. Upon ignition, the wheel revolves, producing a shower of color and sparks and, sometimes, a whistling effect.
(vi) Ground spinner. Small device containing not more than 20 grams of pyrotechnic composition, venting out of orifice usually on the side of the tube. Similar in operation to a wheel in design and effect and placed on the ground and ignited. A shower of sparks and color is produced by the rapidly spinning device.
(vii) Flitter sparkler. Narrow paper tube attached to a stick or wire and filled with not more than 5 grams of pyrotechnic composition that produces color and sparks upon ignition. The paper at one end of the tube is ignited to make the device function.
(b) Aerial device.
(i) Helicopter, aerial spinner. A tube not more than 20 grams of pyrotechnic composition with a propeller or blade is attached, which upon ignition, lifts the rapidly spinning device into the air. A visible or audible effect is produced at the height of flight.
(ii) Roman candles. Heavy paper or cardboard tube containing not more than 20 grams of pyrotechnic composition. Upon ignition "stars" are individually expelled.
(iii) Mine, shell. Heavy cardboard or paper tube usually attached containing not more than 60 grams of pyrotechnic composition (lift charge, burst charge, and visible/audio effect composition).
(A) Upon ignition, "stars," or other devices are propelled into the air.
(B) A shell refers to a device that propels a component that subsequently bursts open in the air.
(C) A mine refers to a device with no internal components containing a bursting charge.
(D) A mine or shell device may contain more than one tube provided the tubes fire in sequence upon ignition of one inch external fuse.
(E) Total chemical composition including lift charges of any multiple tube devices may not exceed 200 grams. The maximum quantity of lift charge in any one tube of a mine or shell device will not exceed 20 grams and the maximum quantity of break or bursting charge in any component shall not exceed twenty-five percent of total weight chemical composition in the component.
(iv) Smoke device. Small plastic or paper item containing not more than 100 grams of pyrotechnic composition that, upon ignition, produces white or colored smoke as the primary effect.
(v) Aerial shell kit. A package (kit) containing a cardboard, high-density polyethylene (HDPE) or equivalent launching tube and not more than twelve small aerial shells.
(A) Each shell is limited to a maximum of 60 grams of total composition (lift charge, burst charge, and visible/audible effect composition) and the maximum diameter of each shell will not exceed one and three-quarters inches.
(B) In addition the maximum quantity of lift charge in any shell will not exceed 20 grams and the maximum quantity of break or bursting charge in any shell will not exceed twenty-five percent of the total weight of chemical composition in the shell.
(C) The total chemical composition of all the shells in a kit, including lift charge, will not exceed 400 grams.
(D) All launching tubes must be capable of firing twice the number of shells in the kit without failure of the tube.
(E) Each package of twelve shells must comply with all warning label requirements of CPSC.
(c) Multiple tube fireworks devices - Cake.
(i) Multiple tube devices:
(A) Contain more than one cardboard tube;
(B) Have one external fuse that upon ignition causes all of the tubes to function in sequence;
(C) Are either individually attached to a wood or plastic base;
(D) Are normally limited to a maximum of 200 grams of total pyrotechnic composition for approval as Fireworks, UN0336, 1.4G or Article, Pyrotechnic, UN0431, 1.4G under this standard.
(ii) Cake devices contain the same as multiple tube devices and include the following characteristics and requirements:
(A) Tubes are dense-packed, held together by glue, wire, string, or other means that securely holds the tubes together during operation.
(B) The weight of chemical composition per tube is limited to the weight limit for the specific type of device in the tube.
(C) The connecting fuses on multiple tube devices must be fused in sequence so that the tubes fire sequentially rather than all at once.
(iii) Exception for items with more than one tube:
(A) When the tubes are securely attached to a wood or plastic base, and the tubes are separated from each other on the base by a distance of at least 0.50 inch (12.7 mm), a maximum total weight of 500 grams of pyrotechnic composition will be permitted for approval as 1.4G.
(B) This applies to only the following types of devices:
(I) Cylindrical fountain;
(II) Cone fountain;
(III) Illuminating torch;
(IV) Mine, shell;
(V) Multiple tube fireworks devices - Cake.
(2) "Dangerous fireworks" means:
(a) Torpedoes of all kinds which explode on impact are prohibited.
(b) Fireworks that are examined or tested for compliance with standards established for consumer fireworks and determined to possess characteristics of design or construction that make such item unsafe for use by any person not specially qualified or trained in the use of fireworks. The determination may be made by:
(i) The consumer safety product commission;
(ii) Bureau of Alcohol, Tobacco, Firearms and Explosives;
(iii) State fire marshals office; or
(iv) Department of labor and industries.
(c) All fireworks designed and intended by the manufacturer to create the element of surprise upon the user.
(d) Fireworks that explode by friction, unless otherwise classified by the state fire marshal pursuant to this chapter.
(3) "Display fireworks" means pyrotechnic devices for professional use similar to consumer fireworks in chemical composition and construction but not intended for consumer use. Types of display fireworks:
(a) Aerial shell that is:
(i) Cylindrical or spherical cartridge containing:
(A) Lift charge;
(B) Burst charge;
(C) Effect composition.
(ii) Commonly sized from two to six inches in diameter; and
(iii) Fired from metal, high-density polyethylene (HDPE), fiberglass, or heavy cardboard tubes.
(b) Salute that is:
(i) Paper-wrapped, cardboard tube, or sphere containing explosive composition in excess of 130 mg (2 grains); and
(ii) Upon ignition, produces noise and a flash of light.
(4) "Explosive pest control devices (EPCDs)" or "agricultural and wildlife fireworks" means pest control pyrotechnics (fireworks) that contain black powder, flash powder, or a similar pyrotechnic composition used for pest control efforts within the agricultural, aquacultural (commercial fishing operations), horticultural, and aviation industries when wildlife damage agriculture, property, or threaten public safety or health.
(a) EPCDs are not a consumer firework.
(i) They are regulated under the federal explosives laws.
(ii) To manufacture, import, or distribute EPCDs, requires a federal explosives license, and those who wish to receive explosives must acquire a federal explosives permit, unless otherwise previously exempted.
(b) Commonly known types of EPCDs are:
(i) "Bird bombs, shell crackers or cracker shells" means 12 gauge shotgun shells containing a sound and flash explosive charge that is designed to explode in air or on the surface of the water at a distance of seventy-five to one hundred yards from the point of discharge.
(ii) "Screamer rockets or banger rockets" means units ignited using a hand-held launcher, similar to a .22 short caliber starter pistol, that fly through the air, emitting a loud whistling sound (screamers) similar to other whistling type fireworks, or end in an impulsive report similar to a firecracker.
(iii) "Seal bomb" means underwater firecrackers available domestically, similar to "M-80" firecrackers and contain approximately 2.3 grams of "flash and sound" charge mixture in a sealed cardboard tube, fitted with an eight to nine second waterproof fuse. UN0471 Class 1.4E explosives or NA0412 Class 1.4E explosive.
(iv) "Rocket nets" means a net that is propelled by regulated explosive materials to capture or scare away pest wildlife.
(v) "Rope firecrackers" or "rope salutes" means the fuses of large firecrackers are inserted through cotton rope. As the rope burns, the fuses are ignited.
(c) These items are classified under U.S. Department of Transportation regulations as:
(i) 1.3G Firework;
(ii) 1.4E Explosive (not otherwise specified);
(iii) 1.4S Explosive (not otherwise specified).
(d) Devices used for other than bona fide pest control purposes if approved in accordance with Title 49 C.F.R., Section 173.56.
(5) "Flame effect" means the combustion of solids, liquids, or gases to produce thermal, physical, visual, or audible phenomena before an audience in one of the three methods:
(a) "Automatic flame effect" means a flame effect that is supervised and fired by an automatic control system.
(b) "Manual flame effect" means a flame effect that is operated manually without the use of an automatic control system.
(c) "Portable flame effects" means flame effects that are designed and installed, either in a permanent or temporary installation, and that are designed to move or be moved in the course of operation or installation.
(6) "Forbidden devices" means any device intended for sale to the public that produces an audible effect (other than a whistle) by a charge of more than 130 mg (2 grains) of explosive composition per report.
(7) "Prohibited components" means no component of any consumer fireworks device or novelty may upon functioning, project or disperse any metal, glass, or brittle plastic fragments.
(8) "Prohibited consumer fireworks" means a firework that meets the definition and requirements of a consumer firework promulgated by the U.S. Consumer Product Safety Commission in Title 16, Code of Federal Regulations but the sale, use, and possession is prohibited by the state of Washington unless otherwise prescribed in RCW 70.77.311.
(9) "Theatrical pyrotechnics" means pyrotechnics that are approved as UN0431, Articles, Pyrotechnic, and 1.4G do not bear a warning label that resembles the required wording on a consumer fireworks device.
(10) "Trick and novelty devices" means any small fireworks devices that are not regulated as explosives and are not classified as consumer or display fireworks by the United States Department of Transportation.
(a) These devices must still comply with all labeling requirements of the Consumer Product Safety Commission applicable to consumer fireworks devices as required in WAC 212-17-055 and includes the following items as defined in APA 87-1:
(i) Snakes, glow worm. Pressed pellet of pyrotechnic composition that contains 2 grams or less of composition per article. Upon burning produces a large, snake-like ash that expands in length as the pellet burns.
(ii) Party popper. Small plastic or paper device containing not more than 16 mg of explosive composition that is friction sensitive. A string protruding from the device is pulled to ignite it, expelling paper streamers and producing a small report.
(iii) Snapper. Small, paper-wrapped item containing not more than 1.0 mg of silver fulminate coated on small bits of sand or gravel. When dropped, the device explodes, producing a small report.
(iv) Toy smoke devices. Small devices consisting of cork-like spheres, or cardboard or plastic tubes, containing not more than 5 grams of pyrotechnic composition that produces a small cloud of smoke after activation. Device is typically ignited by means of safety fuse.
(v) Toy caps. Toy plastic or paper caps for toy pistols in sheets, strips, rolls, or individual caps, containing a small amount of explosive composition per cap.
(b) Trick and novelty devices does not include any kind of sparklers as outlined in subsection (1)(a) of this section.
NEW SECTION
WAC 212-17-028 Definitions—General.
(1) "Citation" means a document issued by the office of the state fire marshal pursuant to chapter 70.77 RCW to issue a civil penalty for a violation of RCW 70.77.480 through 70.77.520. A citation may include, but is not limited to, a description of the violation(s) and a notice of civil penalty assessment.
(2) "Consumer fireworks for personal use" means consumer fireworks with a net explosive weight or weight of the pyrotechnic composition which does not exceed one hundred twenty-five pounds. Where the actual weight of the pyrotechnic composition of consumer fireworks is not known, twenty-five percent of the gross weight of the consumer fireworks, including packaging, shall be permitted to be used to determine the weight of the pyrotechnic composition.
(3) "Consumer fireworks retail sales (CFRS) facility" means a permanent or temporary building or structure, CFRS stand, tent, canopy, or membrane structure that is used primarily for the retail display and sale of consumer fireworks to the public.
(4) "Facility" means a consumer fireworks retail sales facility, distribution facility, or manufacturing facility.
(5) "Formal hearing" is a hearing before a hearings officer where the laws, rules, and evidence are presented, considered, and a proposed opinion issued.
(6) "Hazard" means a condition which could result in fire loss, injury, or damage to a person or property.
(7) "Hearings request" means the written request for a formal hearing to contest a civil penalty.
(8) "Inhabited building" means any building or structure regularly used in whole or part as a place of human habitation.
(9) "International Building Code" means the edition currently adopted by chapter 51-50 WAC.
(10) "International Fire Code" means the edition currently adopted by chapter 51-54A WAC.
(11) "Magazine" means a building or structure, other than an explosives manufacturing building approved for the storage of explosive materials.
(12) "Permanent structure" means an enclosure or shelter erected for a period of thirty days or more used for the sales, at retail or wholesale, of legal fireworks of any kind.
(13) "Person" means one or more individuals, legal representatives, partnerships, joint ventures, associations, corporations (whether or not organized for profit), business trusts, or any organized group of persons and includes the state, state agencies, counties, municipal corporations, school districts, and other public corporations.
(14) "Private display" means an entertainment feature where the public is not invited or admitted to view the display or discharge of display fireworks.
(15) "Private way" means any privately owned driveway, lane, access way, or similar parcel of land essentially unobstructed from the ground to the sky which serves as access from private property to a public road.
(16) "Public road" means any street or alley essentially unobstructed from the ground to the sky which is deeded, dedicated, or otherwise permanently appropriated to the public for public use.
(17) "Recognized testing laboratory" means a nationally recognized testing laboratory approved by the state fire marshal.
(18) "State fire marshal" means the director of the fire protection bureau of the Washington state patrol as appointed by the chief or his or her designee.
(19) "Temperature overheat protection" means a device which immediately interrupts the power to the heating element of a portable heating unit when the portable heating unit exceeds its designed operating temperature.
(20) "Temporary power drop" means an electrical service connection to a temporary retail fireworks stand.
(21) "Temporary storage structure" means a building or other structure used for storage of consumer fireworks directly related to a retail fireworks stand and authorized within the scope of a retail fireworks stand permit.
(22) "Temporary structure" means an enclosure or shelter erected for a period of less than thirty days and not otherwise defined in the International Fire Code as a tent or canopy.
(23) "Tip-over protection" means a device which immediately interrupts the power to the heating element of a portable heating unit when the portable heating unit is tipped or tilted more than forty-five degrees from its designed operating position.
AMENDATORY SECTION (Amending WSR 84-23-009, filed 11/9/84)
WAC 212-17-045 ((Definition and classification—")) Explosive pest control devices (EPCDs) or "agricultural and wildlife fireworks."
((The term "agricultural and wildlife fireworks" shall mean (1) fireworks devices, including but not limited to, firecrackers containing more than 50 mg (.772 grains) of pyrotechnic composition designed to produce audible effects, which are distributed to farmers, ranchers and growers through a wildlife management program administered by the United States Department of Interior (or by equivalent state or local governmental agencies); and, such distribution is in response to a written application describing the wildlife management problem that requires use of such devices, is of a quantity no greater than required to control the problem described, and is where other means of control is unavailable or inadequate or, (2) seal control units, purchased under a Certificate of Inclusion, issued by the United States Department of Commerce, National Oceanic and Atmosphere Administration, or sold by bona fide dealers to licensed commercial fishermen or licensed commercial fishing boat owners for marine mammal control.)) (1) No state license is required to purchase or use explosive pest control devices (EPCDs) or agricultural and wildlife fireworks; however, as they are classified explosive devices and regulated by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) requiring a federal explosives permit.
(2) In order to purchase or use EPCDs, a federal explosives permit is required.
(a) Government agencies meeting the requirement of RCW 70.77.311 are not required to have a permit.
(b) For farmers, ranchers, and growers to receive or purchase EPCDs a written wildlife management plan or contract administered by the United States Department of the Interior or an equivalent state or local governmental agency is needed.
(i) The wildlife management plan or contract should describe the wildlife management problem that requires use of such devices.
(A) The wildlife management problem that requires use of such devices.
(B) The frequency and duration of using EPCDs.
(ii) The quantity of EPCDs is no greater than required to control the problem described.
(c) For commercial fishers and licensed commercial fishing boat owners to receive or purchase EPCDs for use on pinnipeds (seals and sea lions), a written plan is needed to receive a Certificate of Inclusion, issued by the United States Department of Commerce, National Oceanic and Atmospheric Administration.
(i) The marine mammal management plan should describe the wildlife management problem that requires use of such devices.
(ii) The frequency and duration of using EPCDs.
(iii) The quantity of EPCDs is of a quantity no greater than required to control the problem described.
(3) Unless specifically required to be used, EPCDs are not to be used when a burn ban is in place or there is an increased fire danger.
(4) EPCDs are not to be used in a reckless or malicious manner that is not reasonable or prudent that threatens to injure or kill wildlife or persons.
(5) Penalties for violations of this section are provided in WAC 212-17-515.
(6) The state fire marshal will notify the Washington state department of fish and wildlife of any violations.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-050 Firework device chemical content((, construction)).
(1) All consumer fireworks devices ((shall)) must meet the ((following)) chemical content((, design, and construction)) requirements((.
(1) Prohibited chemicals. Fireworks devices shall not contain any of the following chemicals:
(a) Arsenic sulfide, arsenates, or arsenites.
(b) Boron.
(c) Chlorates, except:
(i) In colored smoke mixtures in which an equal or greater amount of sodium bicarbonate is included;
(ii) In caps and party poppers;
(iii) In those small items wherein the total powder content does not exceed four grams of which not greater than fifteen percent is potassium, sodium, or barium chlorate.
(d) Gallates or gallic acid.
(e) Magnesium (magnesium/aluminum alloys, called magnalium, are permitted).
(f) Mercury salts.
(g) Phosphorus (red or white). EXCEPT that red phosphorus is permissible in caps and party poppers.
(h) Picrates or picric acid.
(i) Thiocyanates.
(j) Titanium, except in particle size greater than 100-mesh.
(k) Zirconium.
(2) Fuses.
(a) Fireworks devices that require a fuse shall:
(i) Utilize only a fuse that has been treated or coated in such manner as to reduce the possibility of side ignition. Devices such as ground spinners that require a restricted orifice for proper thrust and contain less than 6 grams of pyrotechnic composition are exempt from this requirement.
(ii) Utilize only a fuse which will burn at least three seconds but not more than six seconds before ignition of the device.
(b) The fuse shall be securely attached so that it will support either the weight of the fireworks device plus eight ounces dead weight or double the weight of the device, whichever is less, without separation from the fireworks device.
(3) Bases. The base or bottom of fireworks devices that are operated in a standing upright position shall have the minimum horizontal dimensions or the diameter of the base equal to at least one-third of the height of the device including any base or cap affixed thereto.
(4) Pyrotechnic leakage. The pyrotechnic chamber in fireworks devices shall be sealed in a manner that prevents leakage of the pyrotechnic composition during shipping, handling and normal operation.
(5) Burnout and blowout. The pyrotechnic chamber in fireworks devices shall be constructed in a manner to allow functioning in a normal manner without burnout or blowout.
(6) Handles and spikes. Fireworks devices that are intended to be hand-held and are so labeled shall incorporate a handle at least four inches in length. Handles shall remain firmly attached during transportation, handling and full operation of the device, or shall consist of an integral section of the device at least four inches below the pyrotechnic chamber, except sparklers 10" or less in length shall have handles at least 3" in length. Spikes provided with fireworks devices shall protrude at least two inches from the base of the device and shall have a blunt tip not less than 1/8 inch in diameter or 1/8 inch square.
(7) Wheel devices. Drivers in fireworks devices commonly known as "wheels" shall be securely attached to the device so that they will not come loose in transportation, handling, and normal operation. Wheel devices intended to operate in a fixed location shall be designed in such a manner that the axle remains attached to the device during normal operation.
(8) Toy smoke devices and flitter devices.
(a) Toy smoke devices shall be so constructed that they will neither burst nor produce external flame (excluding the fuse and small but brief bursts of flame accompanying normal smoke production) during normal operation.
(b) Toy smoke devices and flitter devices shall not be of such color and configuration so as to be confused with illegal explosive devices such as M-80 salutes, silver salutes, or cherry bombs.
(c) Toy smoke devices shall not incorporate plastic as an exterior material if the pyrotechnic composition comes in direct contact with the plastic.
(9) Rockets with sticks. Rockets with sticks (including sky rockets and bottle rockets) shall utilize a straight and rigid stick to provide a direct and stable flight. Such sticks shall remain straight and rigid and attached to the driver so as to prevent the stick from being damaged or detached during transportation, handling, or normal operation.
(10) Party poppers. Party poppers (also known by other names such as "champagne party poppers" and "party surprise poppers" shall not contain more than 0.25 grains of pyrotechnic composition. Such devices may contain nonflammable soft paper or cloth inserts)) as defined in APA 87-1. They must not contain any chemicals listed as prohibited in APA 87-1.
(2) Testing:
(a) Any fireworks device that is suspected of containing prohibited chemicals may be sent for independent testing by a recognized testing laboratory.
(b) A minimum of ten devices of each kind will need to be collected and sent for testing.
(c) For a licensed manufacturer, importer, and wholesaler any similar devices are to be segregated from product that can be sold or used until the findings of the testing laboratory are known.
(d) If the laboratory reports the device(s) meet the chemical content in APA 87-1, the devices can be put into the owner's inventory for sale or use.
(e) Laboratory reports that indicate the presence of prohibited chemicals will result in the owner having the responsibility to make arrangements to destroy the devices.
(f) Any items destroyed will need to be witnessed by a police officer, fire marshal, or federal enforcement agent.
(3) Violations of this section are defined in WAC 212-17-515.
NEW SECTION
WAC 212-17-051 Construction.
(1) Fireworks must meet all design, construction, and testing requirements established by APA 87-1, U.S. DOT regulations and Consumer Product Safety Commission standards.
(2) Penalties for violations of this section are provided in WAC 212-17-515.
NEW SECTION
WAC 212-17-053 Altered consumer fireworks—Classification change to dangerous firework.
(1) Any firework in its originally manufactured form that met the standards for a consumer firework as established in this chapter, that has been altered, modified, enhanced, manipulated, tampered, or disassembled will be classified as a dangerous firework.
(2) It is illegal to possess, sell, purchase, store, or discharge any dangerous fireworks.
(a) For the purpose of this section a licensed pyrotechnic operator altering a fuse as part of a public display for consumer fireworks that are electronically fired is not considered a dangerous fireworks.
(b) A person without a pyrotechnic operator's license cannot alter fireworks.
(i) This would include using an electric match attached to the fuse for electronically firing of the device.
(ii) This does not include the use of a nonpyrogen type igniter that clips onto the fuse and a heated wire is the source of ignition.
(c) This section does not apply to law enforcement, government agency, testing laboratory, or designated hazardous material transportation carrier who is transporting dangerous fireworks to a destruction site.
(3) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-055 Firework device, labeling.
(((1) Any consumer fireworks device not required to have a specific label by 16 C.F.R. 1500.14 (b)(7), 1981, as of October 29, 1982, shall carry a warning label indicating to the user where and how the item is to be used and necessary safety precautions to be observed.
(2) Every fireworks device, or fireworks device container where the device is packaged in an immediate container intended or suitable for delivery to the ultimate consumer, shall be conspicuously labeled with the name and place of business of the manufacturer, packer, distributor, or seller and the United States Department of Transportation designation as "Division 1.4G consumer fireworks" or "Division 1.3G special fireworks."
(3) All label wording shall be prominently located, in the English language, and in conspicuous and legible type in contrast by typography, layout, or color with the printed matter on the fireworks device or container.)) (1) Fireworks intended for consumer sale and use must be labeled in conformance with the requirements of the Federal Hazardous Substances Act (FHSA) and regulations promulgated thereunder in Title 16 C.F.R., § 1500.
(2) All outside packaging containing fireworks must be marked and labeled in conformance with Title 49 C.F.R., Part 172.
(a) For consumer fireworks all label wording must be:
(i) Prominently located;
(ii) In the English language; and
(iii) In conspicuous and legible type in contrast by typography, layout, or color with the printed matter on the fireworks device or container.
(b) For display fireworks aerial shells, each shell must bear a label containing the following information:
(i) A description of the size of the shell (e.g., "3 in. (76 mm) shell").
(ii) A description of the type of shell (e.g., "2-break with report").
(iii) A warning statement reading:
"WARNING: DANGEROUS EXPLOSIVE.
IF FOUND, DO NOT HANDLE.
CONTACT LOCAL FIRE OR POLICE DEPARTMENT."
(iv) The name and location of business of the manufacturer, importer, or distributor.
(c) For proximate or theatrical fireworks, articles intended for indoor use:
(i) Must be so marked, and labels must include the following information:
(A) Accurate performance characteristics of the device.
(B) For fountains, gerbs, and other preloads, duration, height, and diameter of the effect, as applicable.
(C) Theatrical pyrotechnics that are approved as UN0431, Articles, Pyrotechnic, 1.4G will not bear a warning label that resembles the required wording on a consumer fireworks device.
(D) A warning label providing instructions to a trained operator is permitted, but alternative wording must be used.
(ii) Theatrical pyrotechnics may or may not have an ignition device attached.
(iii) All requests for approval of a device as articles, pyrotechnic must be accompanied by a signed certification stating that the article is intended for professional use in the entertainment industry and will not be offered for sale to the general public.
(A) Approvals for classification as articles, pyrotechnic will be evaluated based on the weight of pyrotechnic composition in the individual article, and compared to the allowable weights for the corresponding category of 1.4G consumer fireworks.
(B) If a 1.4G classification is desired for an article containing more pyrotechnic composition than is permitted for a comparable consumer firework, the DOT approval procedure in Title 49 C.F.R., § 173.56 (b)(1) will be followed.
(3) Penalties for violations of this section are provided in WAC 212-17-515.
NEW SECTION
WAC 212-17-057 Destruction of dangerous fireworks.
(1) Any firework that does not conform to the requirements of this section regarding labeling is to be confiscated for destruction as a dangerous firework. The cost associated with destruction of any firework in violation of this section will be at the possessor's expense.
(2) A licensed importer may be given a time frame by the U.S. Consumer Product Safety Commission (CPSC) to correct the labeling. Any firework that does not conform to the requirements of this section within the given time frame provided by CPSC will be confiscated and destroyed as provided in this section.
(3) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-060 Public purchase and use of fireworks.
(1) The public may purchase and use consumer fireworks only from licensed retail fireworks stands ((between noon, June 28th and 9:00 p.m. July 5th of each year. Purchase or discharge is prohibited between the hours of 11:00 p.m. and 9:00 a.m., except on July 4th, in which fireworks can be discharged between the hours of 9:00 a.m. and 12:00 midnight. Possession and discharge of fireworks is lawful during this period only, except as provided in subsection (2) of this section.
(2) Religious organizations or private organizations or adult persons may be authorized to purchase consumer fireworks or such audible ground devices as firecrackers, salutes, and chasers, as defined in WAC 212-17-040 (3) and (4) from licensed manufacturers, importers, or wholesalers for use on prescribed dates and locations for religious or specific purposes, when a permit is obtained from the fire chief or other designated local official. Application shall be on forms provided by the director of fire protection and shall contain the following information:
(a) The name and mailing address of the organization or person desiring to purchase and discharge the fireworks;
(b) The date and time of the proposed discharge;
(c) The location of the proposed discharge;
(d) The quantity and type of fireworks desired to be purchased and discharged;
(e) The reason or purpose of the discharge; and
(f) The signature of the applicant, following a statement that: "The applicant understands and agrees to comply with all provisions of the application and requirements of the approving authority, will discharge the fireworks only in a manner that will not endanger persons or property or constitute a nuisance, and assumes full responsibility for all consequences of the discharge, intended or not." Upon approval by the fire official, the applicant may submit a copy of the approval to any licensed wholesaler as proof of authorization to purchase the fireworks listed therein. The applicant shall retain the approval and have it available for inspection by any public official at the actual discharge of the fireworks.
(3) The purchase or receipt of mail-order fireworks through any medium of either interstate or intrastate commerce is prohibited unless the purchaser has first obtained an importers license)) during the periods provided in RCW 70.77.395.
(2) Penalties for violations of this section are provided in WAC 212-17-515.
NEW SECTION
WAC 212-17-061 Purchase and use of fireworks outside of authorized sale and discharge periods.
(1) A permit issued by the local authority having jurisdiction is required to purchase and discharge consumer fireworks outside of the periods identified in RCW 70.77.395.
(a) Religious organizations or private organizations or adult persons with a permit issued by the local fire authority as outlined in RCW 70.77.311 (2)(d) may be authorized to purchase consumer fireworks or such audible ground devices as firecrackers, salutes, and chasers, from licensed manufacturers, importers, or wholesalers for use on the prescribed date and location for religious or specific purposes for which the permit was issued.
(i) Application must be on forms provided by the state fire marshal (may be attached to any permit application form from a jurisdiction) and will contain the following information:
(A) The name and mailing address of the organization or person desiring to purchase and discharge the fireworks;
(B) The date and time of the proposed discharge;
(C) The location of the proposed discharge;
(D) The quantity and type of fireworks desired to be purchased and discharged;
(E) The reason or purpose of the discharge; and
(F) The signature of the applicant, following a statement that: "The applicant understands and agrees to comply with all provisions of the application and requirements of the approving authority, will discharge the fireworks only in a manner that will not endanger persons or property or constitute a nuisance, and assumes full responsibility for all consequences of the discharge, intended or not."
(ii) Upon approval by the fire official, the applicant will provide a copy of the approval to any licensed wholesaler as proof of authorization to purchase the fireworks listed therein.
(iii) The applicant must retain the approval and have it available for inspection by any public official at the actual discharge of the fireworks.
(b) A local jurisdiction may deny an application for a permit to purchase or use fireworks when the local jurisdiction has:
(i) An established ban or restriction on fireworks greater than that listed in RCW 70.77.395; or
(ii) A burn ban in effect due to increased fire hazards.
(2) This section does not apply to public displays of fireworks.
(3) A person with a valid fireworks wholesale or retail license may solicit orders only for retail sales of consumer fireworks provided that the fireworks:
(a) Are not delivered before June 28th or after July 5th;
(b) Are not delivered before December 27th or after December 31st;
(c) Are delivered to fireworks stand where delivery to the consumer will take place and where the sale, possession, and discharge of fireworks are allowed in the jurisdiction.
(4) Any advertisements for sale of fireworks will contain the fireworks license number and expiration.
(5) The purchase or receipt of fireworks through an unlicensed fireworks wholesaler using any medium of either interstate or intrastate commerce (internet, phone, or mail) order or purchase is prohibited.
(6) Advertising the sale of fireworks by unlicensed persons using any medium of either interstate or intrastate commerce (internet, phone, or mail) is prohibited.
(7) Penalties for violations of this section are provided in WAC 212-17-515.
NEW SECTION
WAC 212-17-062 Storage of consumer fireworks for personal use.
(1) Purchase and storage of consumer fireworks for personal use is based on the net explosive weight or weight of the pyrotechnic composition that will require the following minimum distances from inhabited buildings, public highways, passenger railways, and other storage buildings.
Where the net explosive weight is unknown, the gross weight of the consumer fireworks, including packaging, may be used to determine the weight of the pyrotechnic composition.
(2) Penalties for violations of this section are provided in WAC 212-17-515.
NEW SECTION
WAC 212-17-063 Storage of display fireworks for personal use.
(1) The purchase and storage of any display fireworks (1.3g) for personal use must be in compliance with:
(a) Any licensing and permitting requirement of the Bureau of Alcohol, Tobacco, Firearms and Explosives.
(b) Any licensing and permitting requirement of the Washington department of labor and industries.
(c) Any permitting required from the local jurisdiction having authority.
(d) NFPA 1124.
(2) Penalties for violations of this section are provided in WAC 212-17-515.
PART II—((MANUFACTURER)) FIREWORKS LICENSES—MANUFACTURER, IMPORTER AND WHOLESALER
AMENDATORY SECTION (Amending WSR 88-08-027, filed 3/31/88)
WAC 212-17-065 Fireworks ((manufacturer—)) general.
(1) Before receiving a state license under RCW 70.77.315 or local permit, persons intending to manufacture, import, or wholesale fireworks in this state ((shall)) must procure a federal license ((from the director of fire protection and a permit from the local governmental agency having jurisdiction prior to engaging in business. Applications for license shall be made on forms provided by the director of fire protection and the annual license fee shall accompany the application.)) where required.
(2) All license applications ((shall)) must be made on or before January 31 of the year for which the license is desired((. Fireworks manufacturers domiciled in other than the state of Washington shall have a designated agent in the state of Washington, registered with the director of fire protection)) as provided in RCW 70.77.325.
(3) All buildings and structures used for manufacturing, wholesaling, and storage of fireworks are subject to this chapter and all local ordinances relating to building, design, construction, location, and zoning.
(4) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 88-08-027, filed 3/31/88)
WAC 212-17-070 Fireworks ((manufacturer—)) licensing.
(1) Upon receipt of application and license fee, the ((director of fire protection)) state fire marshal will cause an investigation to be made. The state fire marshal will grant or deny a license application within ninety days following the receipt of a properly submitted or amended application.
(a) If the investigation discloses compliance with state laws governing the manufacture, import, or wholesale of fireworks and that granting of a license would not be contrary to public safety or welfare, a license will be granted.
(b) If the license is denied, then the applicant ((shall)) will be notified in writing of the reason why license was denied, and ((he shall)) will:
(i) Be given an opportunity to make such alterations and corrections as are deemed necessary. ((License applications shall be either granted or denied by the director of fire protection within ninety days following receipt of a properly submitted or amended application.))
(ii) Have the right to request a hearing as provided in RCW 70.77.370 and this chapter.
(2) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 82-22-068, filed 11/2/82)
WAC 212-17-075 Fireworks ((manufacturer—)) local ordinances.
Applicants, before applying for a license, should determine that their facilities conform to local zoning, health and building safety standards, fire safety requirements, and any other local ordinances pertaining to manufacture and storage of fireworks. (((See appendix.))) Applicants should refer to requirements in NFPA 1124.
AMENDATORY SECTION (Amending WSR 82-22-068, filed 11/2/82)
WAC 212-17-080 Fireworks ((manufacturer—)) license limitations.
(1) Manufacturer:
(a) A fireworks manufacturer license, together with a permit from local authorities having jurisdiction, authorizes the holder to engage only in the business of manufacturing fireworks of all types and their sale and transportation to licensed wholesalers in Washington.
(b) If ((they)) the manufacturer desires to engage in other types of fireworks business, ((they shall)) the manufacturer must first procure the necessary license.
(((2))) (c) By virtue of its license, a licensed fireworks manufacturer is permitted to sell fireworks for direct shipment out of this state. Such shipment must be made by a public carrier or by the manufacturer in vehicles owned or leased by the manufacturer.
(2) Importer:
(a) A fireworks importer's license authorizes the holder to import fireworks into this state. This authorization is limited to:
(i) Procurement, delivery, or receipt of firework shipments into the state;
(ii) Buying or contracting of fireworks for shipment into the state;
(iii) A registered tribal member importing fireworks into the state for delivery to the registered member's tribal land;
(iv) Transportation of any type of fireworks licensed for and in compliance with 49 C.F.R., Parts 171 through 183;
(v) Storage of all classes and types of fireworks if there are no restrictions or provisions by the local authority having jurisdiction issuing a permit.
(b) An importer's license does not allow for the distribution or selling of fireworks at retail.
(3) Wholesaler:
(a) A fireworks wholesaler's license authorizes the holder to engage only in the sale of fireworks at wholesale.
(b) A fireworks wholesaler's licensee can sell fireworks to:
(i) Licensed retailers;
(ii) Licensed public display operators;
(iii) Other licensed wholesalers;
(iv) Religious organizations, private organizations, or adult persons that have a permit issued by the local authority having jurisdictions to purchase specific fireworks items in accordance with WAC 212-17-061.
(c) A licensed fireworks wholesaler is authorized to sell fireworks for direct shipment out of this state, provided that:
(i) Such shipment is made by a public carrier, or in vehicles owned or leased by the wholesaler; and
(ii) If the purchaser's state requires a permit to purchase, possess, transport, store, distribute, sell, or otherwise deal with fireworks, the purchaser must possess and present the license to the wholesaler for inspection at the time of sale.
(4) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-085 Fireworks ((manufacturer—)) records and reports.
((Manufacturers shall)) (1) License holders will, when requested to do so, submit written reports to the ((chief of the Washington state patrol, through the director of fire protection on)) state fire marshal on each type of license type:
(a) Manufacturer: Production, sale, and distribution of fireworks and name of the person to whom such fireworks were sold.
(b) Wholesaler: Imports, purchases, sales, and consumption of fireworks items by kind and class.
(c) Importer: Imports, purchases, sales of fireworks items by kind and class.
(d) All licensees: Third-party testing documentation to show compliance of any consumer fireworks they distribute, sell, offer for sale, exchange for consideration, transfer, or provide if used properly will work. The third-party testing company must be approved by the Consumer Product Safety Commission.
(2) All license holders will submit reports of storage of all class and types of fireworks in possession when requested.
(3) Penalties for violations of this section are provided in WAC 212-17-515.
((PART III—WHOLESALER))
AMENDATORY SECTION (Amending WSR 88-08-027, filed 3/31/88)
WAC 212-17-115 Fireworks ((wholesaler—General)) permanent storage.
((Fireworks wholesaler licenses cover those persons engaged in the business of selling fireworks at wholesale to licensed persons in this state. Wholesale licensees may transport the class of fireworks for which they hold a valid license. Fireworks wholesalers domiciled in other than the state of Washington shall have a designated agent in the state of Washington, registered with the director of fire protection.)) (1) Permanent fireworks storage is:
(a) Subject to this chapter when the period of time of storage is other than, or longer than that specified for temporary storage.
(b) Subject to the International Fire Code, the International Building Code, and local ordinances.
(2) Storage of fireworks in a facility, not authorized by the license and permit is prohibited.
(3) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 82-22-068, filed 11/2/82)
WAC 212-17-130 Fireworks ((wholesaler—Local ordinances)) restrictions.
((Applicants, before applying for a license should determine that their facilities conform to local zoning, health and building safety standards, fire safety requirements, and any other local ordinances pertaining to storage of fireworks. (See appendix.))) The storage, transportation, sale, and transfer of ownership of all classes and types of fireworks by manufacturers will be subject to the restrictions and provisions of the state fireworks law and these rules.
AMENDATORY SECTION (Amending WSR 82-22-068, filed 11/2/82)
WAC 212-17-145 Fireworks ((wholesaler—)) importing requirements.
((Wholesalers who engage in the business of importing fireworks shall first procure a state license as is required for import licensees.)) (1) The state fire marshal must receive notice of interstate shipments of fireworks under the licensed importers control as the owner, consignee, or broker no later than the next business day when any such shipment is field tested by the Consumer Product Safety Commission (CPSC) or the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) for compliance, meeting the chemical content, design, and construction requirements as required in APA 87-01 and there are any firework device(s) that fail the field test with either:
(a) Additional samples of the fireworks collected for laboratory testing by the CPSC, requiring a bond be placed on the remaining items; or
(b) The quantity of explosive and/or pyrotechnic composition exceeds the limit for inclusion in the Fireworks 1.4G, UN0336 category are classed as Fireworks 1.3G, UN0335 and changes the storage requirement; or
(c) The device failing to conform to the applicable requirements is also deemed a banned hazardous substance.
(2) The importer will provide the following information to the state fire marshal:
(a) Date of inspection by CPSC or BATFE.
(b) Product name, type, and class of firework.
(c) Which requirement the product did not conform to:
(i) Labeling;
(ii) Pyrotechnic material leak;
(iii) Fuse support/side ignition;
(iv) Stability;
(v) Pyrotechnic material weight (overload);
(vi) Burnout/blowout;
(vii) Device malfunction;
(viii) Stick (rockets);
(ix) Chemical analysis.
(3) Upon receiving this notification from the licensed importer, the state fire marshal would provide notification to:
(a) The jurisdiction in which the fireworks are being stored.
(b) The local ATF office for industry compliance with storage.
(c) Other state and local agencies that may license or regulate explosives and explosives storage.
(4) The importer will hold such hazardous substance and not distribute it until further notice from CPSC which may be in the form of a "Letter of Advice (LOA)."
(5) The importer will notify the state fire marshal of the laboratory results by providing a copy of the LOA within five business days of receipt.
(a) Products that are confirmed by a laboratory test will need to be corrected or destroyed.
(b) Any consumer firework that has been found described as Fireworks, UN0336 1.4G that is found to have a quantity of explosive and/or pyrotechnic composition that exceeds the limits for type of firework will be classified as Fireworks, UN0335 1.3G.
(c) Any change in classification other than what the product was imported under will require the product to be stored in an approved, licensed explosive magazine.
(6) The following violations of this section are classified as serious threat to public safety and each day of noncompliance will be considered a separate offense:
(a) Failing to notify the state fire marshal that samples were taken by the CPSC or BATFE and/or results of the samples (LOA).
(b) Failing to store overloaded fireworks.
(c) Notwithstanding the existence or use of any other remedy, any licensed fireworks importer or wholesaler violating this section may have its license suspended or revoked and future license applications denied.
(7) Additional requirements:
(a) Any licensed fireworks importer or wholesaler found to have imported fireworks not meeting the chemical content, design, and construction requirements as required in APA 87-01 and wanting to continue to have a fireworks license may as part of mitigation submit to the following conditions:
(i) Company will become a member of a fireworks trade association;
(ii) Have all future firework products imported into the state of Washington tested prior to shipment for compliance by a third-party testing company approved by the CPSC.
(b) Failure to meet these requirements will void any mitigated penalty and licensing actions.
(8) Penalties for violations of this section are provided in WAC 212-17-515.
((PART IV—IMPORTER))
PART ((V)) III—FIREWORKS RETAILER
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-185 Retailer((s)) of fireworks—License and permit.
(1) Persons desiring to engage in the business of selling fireworks at retail ((shall)) must:
(a) Secure a license from the ((director of the Washington state patrol fire protection bureau.
(2) In addition to the state license,)) state fire marshal.
(b) Obtain a permit ((must be obtained)) from the local governmental officials having jurisdiction.
(((a) The application shall be made on forms provided by the director of fire protection and shall be accompanied by the license fee of forty dollars.
(b) License applications shall be made on or before May 1 of the year for which the license is desired.
(c) The director of fire protection shall grant or deny the license within fifteen days of receipt of the application.
(d) Applicants are cautioned to first determine whether a local retail sales permit for fireworks can be obtained.
(3))) (c) A license and permit are valid and effective from January 1 of the year in which the application is made and ending January 31 of the following year.
(2) A retailer's license to sell fireworks ((shall)) will not:
(a) Authorize the licensee to engage in any other fireworks activity. ((Retailers are limited to selling only those fireworks which have been approved for sale to the public and appear on the list of approved fireworks published annually by the director of fire protection. A copy of the list shall be prominently posted at each retail outlet.)) (b) Be used for the purchase of fireworks at wholesale:
(i) If a CFRS facility is not open for the sale of consumer fireworks to the public; or
(ii) Allow a person to purchase fireworks from a wholesaler when the intent is not to open a CFRS, but to use the consumer fireworks for personal use.
(c) Be transferable, except that any license purchased by a licensed wholesaler may have the business or nonprofit group name added in addition to the wholesalers if required by the local authority having jurisdiction issuing the fireworks permit. The wholesaler will need to have a written agreement similar to any other retail license issued through the wholesaler.
(3) If the license is denied, then the applicant will be notified in writing of the reason of the denial, and will:
(a) Be given an opportunity to make such alterations and corrections as are deemed necessary.
(b) Have the right to request a hearing as outlined in WAC 212-17-475.
(4) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-198 ((Retailers of)) Fireworks—List.
((The following is the list of fireworks that may be sold to the public.
(1) Ground and hand-held sparkling devices.
(a) Dipped stick, sparkler. Stick, or wire coated with pyrotechnic composition that produces a shower of sparks upon ignition. Total pyrotechnic composition may not exceed 100 grams per item. Those devices containing any perchlorate or chlorate salts may not exceed 5 grams of pyrotechnic composition per item. Wire sparklers which contain no magnesium and which contain less than 100 grams of composition per item, not Class C explosives under DOT regulations, are included in this category.
(b) Cylindrical fountain. Cylindrical tubes not more than 3/4 inch (19 mm) inside diameter, containing up to 75 grams of pyrotechnic composition. Upon ignition, a shower of colored sparks, and sometimes a whistling effect is produced. This device may be provided with a spike for insertion into the ground (spike fountain), a wood or plastic base for placing on the ground (base fountain), or a wood or cardboard handle, if intended to be hand-held (handle fountain).
(c) Cone fountain. Cardboard or heavy paper cone containing up to 50 grams of pyrotechnic composition. The effect is the same as that of a cylindrical fountain.
(d) Illuminating torch. Cylindrical tube containing up to 100 grams of pyrotechnic composition. Upon ignition, colored fire is produced. May be spike, base, or hand-held.
(e) Wheel. Pyrotechnic device attached to a post or tree by means of a nail or string. Each wheel may contain up to six "driver" units; tubes not exceeding 1/2 inch (12.5 mm) inside diameter and containing up to 60 grams of pyrotechnic composition. Total pyrotechnic composition of each wheel shall not exceed 240 grams. Upon ignition, the wheel revolves, producing a shower of color and sparks and, sometimes, a whistling effect.
(f) Ground spinner. Small device similar to a wheel in design and effect and placed on the ground and ignited. A shower of sparks and color is produced by the rapidly spinning device.
(g) Flitter sparkler. Narrow paper tube filled with pyrotechnic composition that produces color and sparks upon ignition. This device does not have a fuse for ignition. The paper at one end of the tube is ignited to make the device function.
(2) Aerial devices.
(a) Helicopter, aerial spinner. A tube not more than 1/2 inch (12.5 mm) inside diameter and containing up to 20 grams of pyrotechnic composition. A propeller or blade is attached, which, upon ignition, lifts the rapidly spinning device into the air. A visible or audible effect is produced at the height of flight.
(b) Roman candles. Heavy paper or cardboard tube not exceeding 3/8 inch (9.5 mm) inside diameter and containing up to 20 grams of pyrotechnic composition. Upon ignition, up to ten "stars" (pellets of pressed pyrotechnic composition that burn with bright color) are individually expelled at several-second intervals.
(c) Mine, shell. Heavy cardboard or paper tube up to 2 1/2 inches (63.5 mm) inside diameter attached to a wood or plastic base and containing up to 40 grams of pyrotechnic composition. Upon ignition, "stars," firecrackers, or other devices are propelled into the air. The tube remains on the ground.
(d) Aerial shell. A 1 3/4" or smaller cylindrical or spherical cartridge containing up to 40 grams of chemical composition.
(e) Mortar. A 1 3/4" or smaller cardboard tube in which aerial shells are discharged into the air.
(3) Combination items. Fireworks devices containing combinations of two or more of the effects described in this section.
(4) Smoke device. Tube or sphere containing pyrotechnic composition that, upon ignition, produces white or colored smoke as the primary effect.
(5) Division 1.4G explosives classified on January 1, 1984 as consumer fireworks by the United States Department of Transportation except that the term shall not include firecrackers, salutes, chasers, skyrockets or missile-type rockets.)) (1) Retailers are limited to selling only those consumer fireworks which have been approved for sale to the public and appear on the list of approved fireworks published annually by the state fire marshal.
(2) Retailers must post prominently at each retail outlet this list of the approved consumer fireworks.
(3) The state fire marshal will provide the list to the retailers when licenses are issued.
(4) Penalties for violations of this section are provided in WAC 212-17-515.
NEW SECTION
WAC 212-17-199 Prohibited consumer fireworks.
(1) The following consumer fireworks are prohibited for use, sale, and possession:
(a) Prohibited fireworks as defined in WAC 212-17-025, unless otherwise prescribed in RCW 70.77.311:
(i) "Firecracker" means a small, paper-wrapped or cardboard tube containing not more than 50 mg of explosive composition, those used in aerial devices may contain not more than 130 mg of explosive composition per report. Upon ignition, noise and a flash of light are produced.
(ii) "Salute" means paper-wrapped, cardboard tube, or sphere containing explosive composition in excess of 130 mg (2 grains). Upon ignition, noise and a flash of light are produced.
(iii) "Chaser" means a paper or cardboard tube venting out the fuse end of the tube containing not more than 20 grams of chemical composition. The device travels along the ground upon ignition and often produces a whistling effect, or other noise. Explosive composition may be included to produce a report but may not exceed 50 mg.
(iv) "Sky rocket and bottle rocket" means a cylindrical tube containing not more than 20 grams of chemical composition with a wooden stick attached for guidance and stability. Rockets rise into the air upon ignition. A burst of color and/or sound may be produced at or near the height of flight.
(v) "Missile-type rocket" means a device similar to a sky rocket in size, composition, and effect that uses fins rather than a stick for guidance and stability. Missiles will contain no more than 20 grams of total chemical composition.
(b) Those consumer fireworks identified in WAC 212-17-025.
(2) Penalties for violations of this section are provided in WAC 212-17-515.
NEW SECTION
WAC 212-17-21504 Retailers—Purchase and sale of fireworks.
(1) A retail licensee must purchase only Division 1.4G consumer fireworks, not otherwise prohibited by chapter 70.77 RCW, WAC 212-17-199 or local ordinance from state-licensed wholesalers.
(2) Sale of consumer fireworks will occur only from a licensed consumer fireworks retail sales facility (CFRS). Retail sales of fireworks may occur at a non-CFRS when:
(a) An inert sample package of the consumer fireworks is displayed for sale inside a fixed place of business and a CFRS meeting all of the requirements in this chapter is placed outside of the fixed place of business.
(b) The fireworks are paid for inside the business with the customer provided a receipt of purchase with the sales transaction completed when the customer shows proof of purchase and takes possession of the firework package at the CFRS.
(3) Holiday related products incidental but related to these products, may be sold in retail consumer fireworks retail sales facilities.
(4) Failure to comply at any time with the provisions of this section will constitute a violation of chapter 70.77 RCW and may result in:
(a) The temporary suspension of the license or permit;
(b) Immediate revocation of the license or permit for:
(i) A serious health or public safety violation, if the violation poses an immediate risk to any person, the action will become effective immediately. The duration of the revocation will be based upon the action:
(A) Willful, reckless, or malicious acts would revoke the license for the license year.
(B) Accidental or negligent acts would revoke the license until the licensee can show measures to correct and prevent further violations have been put in place (i.e., training).
(ii) Information provided to obtain a license or permit is subsequently found to be inaccurate or would have prevented the issuance of a license or permit.
(A) The license will be revoked through the remainder of the license year.
(B) The person, group, or business may be denied a future license.
(c) Surrendering the fireworks license to the state fire marshal.
(d) Surrendering the fireworks permit to the issuing jurisdiction.
(e) Temporary closure of the CFRS sales or storage structure, the seizure or forfeiture of some or all of the fireworks, or other criminal penalties as provided by law.
(5) If the license or permit is suspended or denied, then the applicant will:
(a) Be notified in writing of the reason why license was denied;
(b) Be given an opportunity to make such alterations and corrections as are deemed necessary by the state fire marshal;
(c) Have the right to request a hearing as outlined in WAC 212-17-475.
(6) Penalties for violations of this section are provided in WAC 212-17-515.
PART IV—CONSUMER FIREWORKS RETAIL SALES FACILITIES (CFRS)
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-21505 ((Retailers of fireworks—General provisions.)) CFRS structures.
(((1) The state of Washington hereby fully occupies the entire field of regulation relating to the construction and use of temporary and permanent structures for the retail sale and storage of fireworks including: The location of and areas surrounding, the operation of and the cleanup after the use of said structures, pursuant to RCW 70.77.270.
(2) The state of Washington hereby preempts the authority of local jurisdictions with respect to the retail sale and associated storage of consumer fireworks from temporary structures. This rule constitutes the entire and exclusive authority for regulation of all such matters. Subject to the limitations imposed by chapter 70.77 RCW, a city or county may ban fireworks; or a city or county may restrict the dates of sale, purchase, possession and use of fireworks; or a city or county may restrict the types of fireworks that may be sold and purchased within its boundaries. If a city or county allows the sale of fireworks classified as consumer fireworks from temporary structures these rules preempt that city's or that county's authority to enact or enforce any other regulations.
(3))) (1) Consumer fireworks will only be permitted to be sold at retail in any of the following structures:
(a) Temporary, stable structures made from wood, metal, fiberglass, or other material. Any temporary fireworks retail stand greater than four hundred square feet will meet the requirements of a permanent structure, except tents or canopies as defined in the International Fire Code;
(b) Tents, canopies, or structures utilizing temporary membrane material which must be made from fire retardant material or treated with a fire retardant as identified in the International Fire Code. When those requirements are in conflict with other provisions of these rules, the more restrictive provisions will apply;
(c) Permanent buildings or structures constructed in accordance with the building code enforced by the authority having jurisdiction;
(d) Trailers or shipping containers may be used as a CFRS only if they comply with the requirements of a CFRS;
(e) Vehicles, such as vans, buses, motor homes, travel trailers, trucks, and automobiles will not be allowed to operate as a CFRS.
(2) Except as prescribed by this rule, the use of permanent structures or temporary structures over four hundred square feet for fireworks sales and storage ((shall)) will be subject to the provisions of the International Fire Code and the International Building Code, and local ordinances((.
(4) The use of temporary structures for the temporary sale or storage of consumer fireworks are exempt from the International Building Code, International Fire Code and local ordinances except that where a city or county ordinance regulates the sale or use of fireworks as a part of that city's or that county's building code or fire code, those provisions of that county's or that city's building code or fire code which are not in conflict with this rule are not hereby preempted or affected.
(5) Each license and permit shall be issued and shall remain valid and effective for the thirteen-month period beginning on January 1 of the year in which application is made and ending January 31 of the following year.
(6) Only Division 1.4G consumer fireworks, obtained from state-licensed wholesalers, not otherwise prohibited by chapter 70.77 RCW or local ordinance, and holiday related products incidental but related to these products, may be sold in retail fireworks stands.
(7) Except as limited by local ordinance, fireworks may be sold from 12:00 noon to 11:00 p.m. on June 28 through 9:00 p.m. on July 5. Fireworks may not be sold between the hours of 11:00 p.m. and 9:00 a.m. from June 28 through July 3. Fireworks may not be sold from 12:00 midnight on July 4 through 9:00 a.m. on July 5.
(8) Except as limited by local ordinance, fireworks may be sold from 12:00 noon to 11:00 p.m. on each day from the 27th of December through the 31st of December of each year.
(9) Licensees shall familiarize all persons working in a retail fireworks stand with the provisions of these rules.
(10) Failure to comply at any time with the provisions of this rule or any other applicable regulation shall constitute a violation of chapter 70.77 RCW and may result in the temporary suspension or immediate revocation of the license or permit, closure of the fireworks sales or storage structure, the seizure and/or forfeiture of some or all of the fireworks, and other criminal penalties as specified by law.
(11) The local authority having jurisdiction, with the concurrence of the state fire marshal, is authorized to modify any of the provisions of WAC 212-17-21509, 212-17-21511, 212-17-21513, 212-17-21515, and 212-17-21517 upon written application by the licensee or a duly authorized representative)). This includes, but may not be limited to, implementing a maximum square footage of any temporary or permanent structure.
(3) The local authority having jurisdiction may prescribe rules regarding CFRS facilities are consistent with WAC 212-17-21509 through 212-17-21517, where there are practical difficulties in the way of carrying out the provisions of these sections((, provided that the spirit of the rule shall be complied with, public safety secured and substantial justice done)) and the state fire marshal approves the rules. The particulars of such modification ((shall)) must be registered with the state fire marshal and the fireworks license issued will include a notation as to the modification approved.
(a) Modification of any provision will be registered to the retail licensee, not the retail sales location or wholesaler.
(b) Any break in licensing will void any approved modifications.
(4) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-21509 ((Retailers of fireworks—))Location.
(1) CFRS locations will be permitted only in the county shown on the license. If the county needs to be changed, or other corrections made, the license will be surrendered to the state fire marshal and the state fire marshal will issue a new license for the new county. Any corrections written on a license will void the license.
(2) CFRS locations will only be located at the address for which the permit from the local jurisdiction was approved and placed according to the approved site plan.
(3) Activities or uses subject to this rule ((shall)) will not be limited in location except where such activities or uses are prohibited or controlled by local development regulation, traffic safety or road construction standards.
(((2) Temporary retail fireworks)) (4) The CFRS stands ((shall)) will not be located more than one hundred fifty feet from a private way, fire department access road, public road, street or highway as measured by an approved route around the exterior of the stand.
The minimum requirements for a private way ((shall)) will be determined by the local authority having jurisdiction, but ((shall)) will not exceed the requirements of locally adopted street, road and access standards.
(((3))) (5) Any two ((retail fireworks)) CFRS stands ((shall)) must be at least one hundred feet apart or ((shall)) will be separated by a road, street or highway not less than thirty feet in width.
(((4) Retail fireworks)) (6) CFRS stands ((shall)) must be located as ((required by Table 212-17-21509 in this section.)) follows:
(a) The minimum required area surrounding the stand ((shall)) must be marked or flagged, except that flagging and marking ((shall)) will not block a sidewalk or pedestrian pathway.
(b) Flagging need not exceed twenty feet in any direction.
(5) Retail fireworks))
(7) CFRS stands ((shall)) will not be located closer than ((one hundred)):
(a) Fifty feet from any motor vehicle dispensing station, retail propane dispensing station, flammable liquid storage, or combustible liquid storage. ((Retail fireworks stands shall not be located closer than)) Measurements will be taken from the pump or above ground tank storage to the CFRS.
(b) Three hundred feet from any bulk storage of flammable or combustible liquid or gas, including bulk plant dispensing areas.
(8) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-21511 ((Retailers of fireworks—))Area around the retail fireworks ((stand)) sales site.
(1) The minimum areas around the retail fireworks stand specified in WAC 212-17-21509 ((shall)) will be kept free of accumulation of dry grass, dry brush and combustible debris. No parking ((shall)) will be permitted within this minimum area.
(2) No motor vehicle or trailer may be parked within twenty feet of a retail fireworks stand except when delivering, loading or unloading fireworks.
(3) Fireworks ((shall)) will not be discharged within ((one)) three hundred feet of a retail fireworks stand. Signs reading "NO FIREWORKS DISCHARGE WITHIN ((100)) 300 FEET" in letters at least ((two)) four inches high, with a principal stroke of not less than one-half inch, on contrasting background, ((shall)) will be conspicuously posted on all four sides of the stand.
(4) No smoking ((shall)) will be allowed within the retail fireworks stand or within the minimum flagged off area. Signs reading "NO SMOKING WITHIN ((20)) 50 FEET" in letters at least two inches high, with principal stroke of not less than one-half inch, on a contrasting background, ((shall)) will be conspicuously posted on all four sides of the stand.
(5) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-21513 ((Retailers of fireworks—Stand use and construction.)) CFRS electrical.
(((1) Fireworks may be sold from:
(a) A permanent structure which meets provisions of WAC 212-17-21505(3).
(b) Temporary, stable structures made from wood, metal, fiberglass or other material. Any temporary fireworks retail stand greater than four hundred square feet shall meet the requirements of a permanent structure, except tents or canopies as defined in the International Fire Code.
(c) Tents, canopies, or structures utilizing temporary membrane material. All tents, canopies or temporary membrane materials structures shall be made from fire retardant material or treated with a fire retardant as identified in the International Fire Code. Any tent, canopy or temporary membrane material structure falling within the scope of the International Fire Code shall comply with those requirements. When those requirements are in conflict with other provisions of these rules, the more restrictive provisions shall apply.
(2) Battery powered equipment, electrical equipment and electrical cords which are used in conjunction with a retail fireworks stand or a temporary storage structure or location must be listed by a recognized laboratory and used in accordance with that listing.)) (1) If electrical power is supplied by an extension cord, the size ((of the cord, the)) and length of the cord and, the amperage and ((the)) voltage supplied ((shall)) will be in compliance with the requirements of the National Electrical Code, current edition. The cord ((shall)) must be protected as necessary from "drive-over" and other physical damage.
(2) No additional permits from a city or county or state official having jurisdiction ((shall)) will be required for these temporary uses except as specified in subsection (5) of this section.
(3) All heating units ((shall)) must:
(a) Be listed by a recognized testing laboratory; and ((shall))
(b) Be used in accordance with the listing((. Heating sources shall)); and
(c) Have "tip-over" and temperature overheat protection((. All heating devices shall)); and
(d) Have sealed type elements (i.e., oil filled or water filled radiator type). Open flame heating devices are prohibited.
(4) Generators which use combustible fuel and which are at least twenty feet from the ((retail fireworks stand)) CFRS or the temporary fireworks storage structure ((shall)) will be allowed. Generator fuel ((shall)) will be limited to not more than five gallons and stored at least twenty feet from all ((stands)) CFRS.
(5) Compliance with the National Electrical Code, current edition, ((shall)) will be required for all new, ((permanent)) electrical installations, including temporary power drops, subject to possible permit fees.
(6) ((Retail sales of fireworks and other products which are holiday related shall be from buildings used for no other purpose.)) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-21515 ((Retailers of fireworks—))Operation of ((retail fireworks stands)) CFRS.
(((1) A clear aisle or walkway not less than twenty-four inches wide shall be maintained inside the full length of the structure. Customers shall only be permitted inside a temporary retail fireworks stand that is greater than four hundred square feet and which meets minimum exit requirements of the International Building Code and International Fire Code, as now or amended hereafter.
(2) Each temporary retail fireworks stand must have at least two exits, at least twenty-eight inches in width, located at opposite ends of the structure. Exits must remain unlocked and unobstructed during the hours of operation or when the stand is occupied.
(3))) (1) Licensees must familiarize all persons working in a retail fireworks stand with the provisions of these rules.
(2) Sleeping inside a retail fireworks stand or an associated temporary fireworks storage facility is prohibited.
(((4))) (3) The location of the nearest permanently mounted telephone must be posted inside the retail fireworks stand and persons working in the stand ((shall)) must be informed of that location.
(((5))) (4) The local emergency telephone number ((shall)) will be conspicuously posted inside the retail fireworks stand.
(((6))) (5) Each retail fireworks stand ((shall)) will be equipped with two approved, pressurized two and one-half gallon water-type fire extinguishers.
(((7))) (6) No open flames nor any type of open flame equipment ((shall)) will be allowed in any retail fireworks stand.
(((8) Retail fireworks stands shall be secured when unoccupied and not open for business if fireworks are kept in the structure during these times. Retail fireworks stands shall never be locked when occupied. The fireworks may be removed and transferred to a temporary storage structure or location approved as a part of the license and permit.
(9))) (7) At least one adult person, eighteen years of age or older ((shall)) will be present at all times in every retail fireworks stand during the hours of sale to the public and ((shall)) will be responsible for supervision of the retail fireworks stand and its operation.
(8) No person, other than customers, under the age of sixteen ((shall)) will be allowed within a retail fireworks stand when it is open to the public.
(9) Fireworks, except for prepackaged assortments, boxes, or similarly packaged containers of more than one item, whether of the same or different kind, must be displayed in a manner which prevents the fireworks from being handled by the public or a customer without the direct intervention of the licensee or his or her representative who ((shall)) will maintain visual contact.
(10) Retail fireworks stands may be required to be inspected by the state fire marshal and/or the local jurisdiction issuing the permit prior to opening for business and other inspections may occur on other days as warranted but there ((shall)) will be no additional charge for all such inspections.
(11) In order to obtain return of a clean-up bond if required by the local authority having jurisdiction as a condition of permit, the cleanup of debris associated with the retail fireworks activity and the removal of all structures authorized by the license and permit shall occur on or before the last day of the storage period specified in these rules.
(12) Fireworks retailers ((shall)) will not knowingly sell fireworks to persons under the age of sixteen.
(a) A sign reading "no sale of fireworks to persons under the age of sixteen years. PHOTO ID REQUIRED" in letters at least two inches high, with a principal stroke of not less than one-half inch, on contrasting background, ((shall)) will be conspicuously posted on the front of each retail fireworks stand.
(b) Sellers ((shall)) must require proof of age by means of display of a driver's license or photo identification card showing date of birth issued by a public or private school, state, federal or foreign government. No other forms of identification ((shall)) will be accepted.
(13) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-21517 ((Retailers of fireworks—))Temporary fireworks storage associated with the ((retail fireworks stand)) CFRS operation.
(1) Temporary fireworks storage is not permanent fireworks storage.
(2) Temporary fireworks storage is defined as:
(a) Storage associated with retail fireworks sales and may only be from June 13 through July 31; and
(b) From December 12 through January 10 of the following year((. Permanent fireworks storage is associated with retail or wholesale fireworks activities when the period of time of storage is other than, or longer than that specified for temporary storage. Temporary fireworks storage shall be in accordance with this section. Permanent fireworks storage is subject to the International Fire Code and the International Building Code and local ordinances.
(2) Delivery of fireworks to a location, or storage of fireworks in a facility, not authorized by the license and permit is prohibited. If the approved storage location is outside the jurisdiction issuing the permit, the authority issuing the permit shall notify the appropriate authorities of the jurisdiction in which the storage is to be located)).
(3) Temporary fireworks storage must be in accordance with this section.
(4) A temporary fireworks storage facility or a temporary fireworks storage location ((shall)) will be authorized as a part of a license and permit if it meets the requirements specified herein.
(((4) No open flames nor any type of open flame equipment shall be allowed in any temporary fireworks storage structure.))
(5) Storage of fireworks authorized by a retail license and permit is legal only during the periods specified in this section.
(6) Temporary fireworks storage structures may be inspected prior to use and other inspections may occur on other days as warranted. There will be no additional charge for all such inspections.
(7) Fireworks may be stored:
(a) In a locked or secured retail fireworks stand; or
(b) In a locked or secured truck, container, trailer, other vehicle or anything similar which is not less than twenty feet from the retail fireworks stand during hours of retail sales; or
(c) In a locked or secured truck, container, trailer, other vehicle or anything similar which is not less than twenty feet from an inhabited building where the term "inhabited building" is defined as in the International Fire Code; or
(d) In a magazine which meets the minimum standards of Type 4 as prescribed by the International Fire Code, and which is not less than ten feet from an inhabited building where the term "inhabited building" is defined as in the International Fire Code; or
(e) In a locked or secured metal or wooden garage, shed, barn or other accessory building, or anything similar which is not less than:
(i) 20 feet from an inhabited building for storage of fireworks for one or two retail stands; or
(ii) 30 feet from an inhabited building for storage of fireworks for three or more stands.
((The term "inhabited building" is defined as in the International Fire Code.))
(((7))) (8) The local authority having jurisdiction may reduce the minimum separation requirements of this section provided that safety of life and property is not diminished.
(((8))) (9) No open flames nor any type of open flame equipment shall be allowed in any temporary fireworks storage structure.
(10) No cooking is permitted in a retail fireworks stand or in a temporary fireworks storage structure.
(((9) Temporary fireworks storage structures may be inspected prior to use and other inspections may occur on other days as warranted. There shall be no additional charge for all such inspections.)) (11) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-21519 ((Retailers of fireworks—))Cleanup.
(1) At the end of the legal selling period, all fireworks must remain in the retail fireworks stand, temporary storage location authorized by the retail permit or another location approved by the local authority having jurisdiction or his or her designee until returned to the suppliers from which they were obtained, or until transferred to an approved location.
(2) Cities and counties may require a clean-up bond, not to exceed five hundred dollars, as a condition of the permit, to ensure the removal of all structures and debris from the site.
(3) In order to obtain return of a clean-up bond, cleanup of debris associated with the retail fireworks activity and the removal of all temporary structures authorized by the license and permit ((shall)) will be completed no later than 11:59 p.m., July 15 for the Fourth of July selling period or no later than 11:59 p.m., January 10 for the New Year's selling season.
(4) Failure of the licensee to comply with subsection (3) of this section ((shall)) will constitute forfeiture of the clean-up bond and the licensee shall be liable for any clean-up costs incurred by the city or county which exceed the amount of the bond.
(5) Penalties for violations of this section are provided in WAC 212-17-515.
PART ((VI)) V—PYROTECHNIC OPERATOR
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-220 Pyrotechnic operators—General.
(1) Pyrotechnic operators are licensed to conduct ((public)) displays of fireworks and articles pyrotechnic.
(2) No public display license is issued unless at least one licensed pyrotechnic operator is listed on the application as being responsible for conducting the display.
NEW SECTION
WAC 212-17-221 Operator qualifications.
(1) The operator must be at least twenty-one years old and licensed in accordance with any and all applicable federal, state, and local laws.
(2) Applicants for licensing as an operator must provide evidence of actual experience as an operator or assistant as part of demonstrating competency.
(3) Applicants for licensing as an operator must successfully complete a written examination of laws, regulations, and safety practices pertaining to the discharge of fireworks that will be administered by the state fire marshal or will otherwise demonstrate knowledge of these areas.
(4) Penalties for violations of this section are provided in WAC 212-17-515.
NEW SECTION
WAC 212-17-223 Pyrotechnic operator license types.
(1) The general display licensee will have a pyrotechnic operator appropriately licensed for the type of display to conduct any public display.
(2) The license types and displays allowed to be conducted are:
(a) Pyrotechnic operator license - Conducts an outdoor public display of fireworks following the requirements of NFPA 1123.
(b) Proximate display operator license - Conducts a proximate display before a proximate audience following the requirements of NFPA 1126.
(c) Flame effects operator license to conduct a flame special effects following the requirements of NFPA 160.
(d) Special effects operator license to conduct a special effects display used in connection with a television, theatrical, or motion picture production which may or may not be presented before a live audience.
(3) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 88-08-027, filed 3/31/88)
WAC 212-17-225 ((Pyrotechnic operators—))Application for license.
(1) Application for license ((shall)) must be made on forms prepared by the ((director of fire protection and shall)) state fire marshal and must be accompanied by the annual license fee.
(2) Every applicant for a pyrotechnic operators license ((shall)) must:
(a) Take and pass a written examination administered by the ((director of fire protection and shall)) state fire marshal or the equivalent out-of-state exam;
(b) Submit evidence attesting to the qualifications and experience of the applicant, including participation in the firing of at least six public displays as an assistant, at least one of which ((shall)) must have been in the current or preceding year, for the type of operator's license they are applying for; and
(c) Submit information to be true and accurate regarding the experience.
(3) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-230 ((Pyrotechnic operators—))Examination, investigation and licensing.
(1) Upon receipt of application and license fee, the ((director of fire protection shall)) state fire marshal will cause an investigation to be made as to the experience and competency of the applicant to conduct and supervise a public or proximate display of fireworks in a safe manner. The investigation will include:
(a) Verification of past experience in assisting in ((public)) displays ((shall be verified)) with the licensed pyrotechnic operator under whose supervision the applicant assisted for the type of license applying for.
(b) If experience requirements are satisfactory, the ((director of fire protection shall)) state fire marshal will schedule a written examination for the applicant.
(i) A passing score of at least eighty percent ((shall)) must be attained on the written examination.
(ii) An applicant failing the written examination may reapply within thirty days to retake the examination.
(iii) No reexamination ((shall)) will be taken within thirty days of the previous and no more than two examinations may be taken by the applicant in the same calendar year.
(iv) Any applicant failing to appear for the written examination at the time and location established or who fails the written examination and fails to reapply within thirty days, or fails the examination on the second attempt, is deemed to have forfeited the license fee.
(c) All applicants ((shall)) must submit to a name and date of birth background check through the Washington state patrol criminal records division. Costs for the background check ((shall)) will be the responsibility of the applicant. A background check is not required if:
(i) The person has a valid ATF explosives license; or
(ii) They are employed or contracted to supervise a display for a general display licensee that has an ATF explosives license and the applicant is listed as an approved employee possessor.
(d) The ((director of fire protection shall)) state fire marshal will grant or deny the license on the basis of the successful completion of the investigation and examination.
(2) Submission of false, inaccurate, or misleading information would be cause to deny a license.
(3) Penalties for violations of this section are provided in WAC 212-17-515.
NEW SECTION
WAC 212-17-232 License renewals.
(1) Renewal of pyrotechnic operator's licenses begins January 2nd of each calendar year for those operator licenses that will expire January 31st. The renewal application must:
(a) Be on forms provided by the state fire marshal.
(b) Provide evidence of experience within the past thirteen months as an operator or assistant as part of at least one display.
(c) Be signed.
(d) Include the annual license fee.
(2) Persons whose operator license is expired longer than the twelve months will be required to submit his or her application as a new applicant.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-235 Pyrotechnic operators—Responsibility.
(1) The pyrotechnic operator ((shall be)) is responsible for:
(a) Properly setting up the fireworks public display in accordance with the rules and regulations of the ((director of fire protection. He/she shall determine)) state fire marshal.
(b) Determining that all the mortars, set pieces, are properly installed and that the proper safety precautions have been taken to insure the safety of persons and property. ((He/she shall have))
(c) Having charge of all activities directly related to handling, preparing and firing all fireworks at the public display, including fixing lifting charges and quick match as needed to aerial shells.
((The pyrotechnic operator shall refuse)) (i) Refusing to fire any fireworks that are deemed by him/her to be unsafe or where its discharge might jeopardize life or property.
(ii) Strictly observing the provisions of the state fireworks law and these rules.
(2) Penalties for violations of this section are provided in WAC 212-17-515.
PART ((VII)) VI—PUBLIC DISPLAY LICENSE
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-250 ((Public displays of fireworks—))Application, state license.
(1) Application for ((fireworks public)) "general display" license ((shall)) must be made on forms provided by the ((director of fire protection)) state fire marshal and ((shall)) must be accompanied by the prescribed license fee.
(2) The application for a "general display" license to hold public displays of fireworks will be accompanied by:
(a) The prescribed license fee; and
(b) A surety bond or a certificate evidencing public liability insurance. Such bond and public liability insurance must be noncancellable except upon fifteen days' written notice by the insurer to the director of fire protection.
(3) Failing to submit the license fee, a bond or certificate of liability insurance will be reason to deny a license application.
(4) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-260 ((Public displays of fireworks—))General display license((s)).
((Application for a "general" license to hold public displays of fireworks shall be accompanied by a surety bond or a certificate evidencing public liability insurance. Such bond and public liability insurance shall be noncancellable except upon fifteen days' written notice by the insurer to the director of fire protection.)) (1) Persons desiring to hold a public display of fireworks will secure a general display license from the state fire marshal and a permit from the agency having jurisdiction. A general display license is needed to secure a local permit for a public display.
(2) Each operator does not need a general display license if he or she is are shooting displays for a company or person that has this license.
(3) A pyrotechnic operator is prohibited from conducting a public display of fireworks without a general display license.
(4) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-270 ((Public displays of fireworks—))Local permit, application for.
(1) A permit issued by the authority having jurisdiction is required before conducting any type of public fireworks display.
(2) Application for local permit must be made at least ten calendar days before the public fireworks display.
(3) When applying for permit, applicant ((shall)) must submit information and evidence to local fire authorities covering the following:
(((1))) (a) The name of the organization sponsoring the display, if other than the applicant.
(((2))) (b) The date the display is to be held.
(((3))) (c) The exact location for the display.
(((4))) (d) The name and license number of the pyrotechnic operator who is to supervise discharge of the fireworks and the name of at least one experienced assistant.
(((5))) (e) The number of set pieces, shells (specify single or multiple break), and other items.
(((6))) (f) The manner and place of storage of such fireworks prior to the display.
(((7))) (g) A diagram of the grounds on which the display is to be held showing the point at which the fireworks are to be discharged, the location of all buildings, highways, and other lines of communication, the lines behind which the audience will be restrained, the location of all nearby trees, telegraph or telephone lines, or other overhead obstruction.
(((8))) (h) Documentary proof of procurement of:
(i) Surety bond;
(ii) Public liability insurance; or
(iii) A ((director of fire protection's)) state fire marshal's "general license" for the public display of fireworks.
(((9))) (4) Permittee ((shall)) will be responsible for compliance with the provisions under which a public display permit has been granted.
(5) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-275 ((Public displays of fireworks—))Investigation.
(1) The officer to whom the application for permit is made ((shall)) must:
(a) Make, or cause to be made, investigation of site of the proposed display for the purpose of determining if the fireworks will be of such a character or so located as to be hazardous to property or dangerous to any person. ((He shall also))
(b) Determine whether the provisions of the state fireworks law and these rules and regulations are complied with in the case of a particular display. ((He shall,))
(c) In the exercise of reasonable discretion, grant or deny the application subject to reasonable conditions, if any, as he may prescribe, taking into account locations, parking of vehicles, controlling spectators, storage and firing fireworks, and precautions in general against danger to life and property from fire, explosion, and panic.
(2) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-280 ((Public displays of fireworks—))Permits may not be granted, when.
(1) No permit ((shall)) will be granted for any public display of fireworks where the discharge, failure to fire, faulty firing, or fallout of any fireworks or other objects would endanger persons, buildings, structures, forests, brush, or other grass covered land.
(2) Penalties for violations of this section are provided in WAC 212-17-515.
PART ((VIII)) VII—PUBLIC DISPLAYS
AMENDATORY SECTION (Amending WSR 06-12-010, filed 5/26/06, effective 6/26/06)
WAC 212-17-295 ((Public display—))General.
(1) The intent of this chapter ((shall be)) is to provide requirements for clearances upon which the authority having jurisdiction ((shall)) will base its approval of an outdoor fireworks display site.
(2) Where added safety precautions have been taken, or particularly favorable conditions exist, the authority having jurisdiction ((shall)) will be permitted to decrease the required separation distances as it deems appropriate, upon demonstration that the hazard has been reduced or the risk has been properly protected.
(3) Where unusual or safety-threatening conditions exist, the authority having jurisdiction ((shall)) will be permitted to increase the required separation distances as it deems necessary.
(4) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-345 Public display—Reports.
After every public display, it ((shall)) will be the responsibility of the licensed pyrotechnic operator in charge of the display to submit a written report to the director of fire protection, within ten days following the display, covering:
(1) A brief report of any duds, defective shells, with manufacturer's name, and the type and size of shell.
(2) A brief account of the cause of injury to any person(s) from fireworks and such person's name and address.
(3) A brief account of any fires caused by fireworks.
(4) Any violation of the state fireworks law or of these regulations relating to public display fireworks, with special observations on any irregularities on the part of persons present at the firing site.
(5) The names of pyrotechnic assistants who satisfactorily assisted in all phases of the display, if other than those shown on the license.
(6) Failure to file this report ((shall)) will constitute grounds for revocation of the operator's current license and/or rejection of his application for his license renewal.
(7) Penalties for violations of this section are provided in WAC 212-17-515.
((PART IX—PROXIMATE DISPLAYS))
PART ((X)) VIII—TRANSPORTATION
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-425 Transportation—General.
(1) Licensees are authorized to transport the class and quantity of fireworks for which they have a license to possess from the point of acceptance from a licensed source to an approved storage facility or use site.
(2) Transportation ((shall)) will be in accordance with the regulations of the United States Department of Transportation and the laws of the state of Washington governing the transportation of Division 1.3G and 1.4G explosives.
(3) Nothing in these rules will restrict the right of any person to transport in a private vehicle, fireworks which have been legally purchased for personal use from a retail fireworks licensee.
(4) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-430 Transportation—By common carrier.
(1) No common carrier, as defined in RCW 81.29.010, ((shall)) will deliver fireworks from an out-of-state shipper to any person or firm within this state without first determining:
(a) That the person or firm possesses an importer's license, issued by the ((director of fire protection)) state fire marshal to receive them((,)); or
(b) The shipper has an importer's license, issued by the director of fire protection to ship them into this state.
(2) Penalties for violations of this section are provided in WAC 212-17-515.
PART ((XI)) IX—STORAGE
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-435 Storage—General.
(1) Storage of fireworks ((shall)) must be free from any condition which increases or may cause an increase of the hazard or menace of fire or explosion or which may obstruct, delay or hinder, or may become the cause of any obstruction, delay or hindrance, to the prevention or extinguishment of fire.
(2) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-440 Storage—Explosive safety.
(1) Any person storing fireworks ((shall)) must have a license for the possession (manufacturer, wholesaler, importer, retailer, display) and, in addition, a permit from the local fire authority for the storage site.
(2) If the approved storage location is outside the jurisdiction issuing the permit, the authority issuing the permit must notify the appropriate authorities of the jurisdiction in which the storage is to be located.
(3) Storage ((shall)) must be in accordance with requirements of the local fire official, who may use the safety practices in the appendix of these rules as guidelines in approving the storage permit.
(4) Penalties for violations of this section are provided in WAC 212-17-515.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-445 Storage—By common carrier.
(1) No common carrier ((shall)) will store fireworks while in transit within a building without first obtaining a storage permit from the local fire authority.
(2) Penalties for violations of this section are provided in WAC 212-17-515.
PART X—COMPLIANCE WITH ADOPTED STANDARDS
NEW SECTION
WAC 212-17-446 Violation of adopted standards.
(1) The violation of an adopted standard will be classified as regulatory or license and will be assessed using the following standard penalty range:
(a) Failure to acquire or submit for a license or permit.
(b) Failure to follow a requirement or process.
(2) If the action or behavior led to an increase hazard or threat to a person or animal the penalty would be moved to the mitigating factor or aggravating factor range.
(3) If the violator is unaware of the rules, standard, or is acting in a negligent manner, the penalty would move to the mitigating factor range.
(4) Disregard for rules, standard, or acting in a reckless or wanton manner would move the penalty to the aggravating factor range.
PART ((XII)) XI—FINES AND PENALTIES
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-450 Fines and penalties.
(((1))) These rules establish the basis and process by which citations and penalties will be determined and issued for violations of chapters 70.77 RCW and 212-17 WAC.
(((2) Each violation(s) is classified and penalty(ies) assessed according to violation type and instance.))
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-460 General rules.
(1) These rules establish civil penalty criteria for ((Types I, II, III, and IV Violations and the instances for each type of)) violations of chapter 70.77 RCW and this chapter.
(2) ((These rules apply to persons who violate the requirements of chapters 70.77 RCW and/or chapter 212-17 WAC.
(3))) Each separate instance of noncompliance with chapters 70.77 RCW and/or 212-17 WAC ((shall)) will be considered a separate violation.
(((4))) (3) Each day that a violation continues ((shall)) will be considered a separate violation.
(((5))) (4) The distribution, sale, use, manufacture, or possession of any amount of illegal fireworks is prohibited and subject to citation and penalty.
(((6))) (5) In addition to the issuance of citations and penalties under these rules, the state fire marshal and local fire marshal acting in accordance with chapters 70.77 RCW and/or 212-17 WAC:
(a) May confiscate any amount of illegal fireworks; and
(b) May confiscate other fireworks possessed by persons violating chapters 70.77 RCW and/or 212-17 WAC.
(((7))) (6) In addition to the issuance of citations, penalties, and the confiscation of fireworks, the state fire marshal may also revoke, suspend, or deny any fireworks license provided for under chapter 70.77 RCW to any person who fails to pay a penalty(ies) assessed under these rules.
(((8))) The penalty for each violation shall range from $0 to $1,000 per ((day and occurrence)) violation.
NEW SECTION
WAC 212-17-461 Revocation of license.
The state fire marshal may deny, suspend, or revoke a license:
(1) Upon receiving evidence that any appointee has failed to comply or no longer complies with any requirement or provision of law or this chapter. The following process must be used:
(a) The state fire marshal must give the licensee notice of the action and an opportunity to be heard as prescribed in chapter 24.05 RCW, before denial, suspension, or revocation of the license.
(b) Upon receiving notice of the action, the licensee may, within twenty days from the date of the notice of action, request in writing to the state fire marshal a hearing on the denial, suspension, or revocation of the letter of appointment. An adjudicative proceeding will be commenced within ninety days of the receipt of a hearing request. Failure to request a hearing, or failure to appear at a requested hearing, a prehearing conference, or any other stage of an adjudicative proceeding, will constitute default and may result in the entry of a final order under RCW 34.05.440.
(c) Upon receiving a hearing request, the state fire marshal's office may, at the request of the licensee, or on its own initiative, schedule an informal settlement conference which will be without prejudice to the rights of the parties. The informal settlement conference will be held in a mutually agreed upon location at a mutually agreed upon time and may result in a settlement agreement. If no agreement is reached, a hearing will be scheduled as provided in chapter 34.05 RCW.
(2) Without prior notification if the state fire marshal finds that there is danger to the public health, safety, or welfare which requires immediate action. In every summary suspension of a license, an order signed by the state fire marshal or designee must be entered, in compliance with the provisions of RCW 34.05.479. Administrative proceedings consistent with chapter 34.05 RCW for revocation or other action shall be promptly instituted and determined. The state fire marshal must give notice as is practicable to the licensee.
(3) Immediately if the licensee's insurance bond is canceled.
(4) If the licensee voluntarily relinquishes the letter, the state fire marshal will be advised in writing of this voluntary relinquishment. After receiving notice, the state fire marshal will attempt to obtain the licensee's license. If the licensee requests reissuance of the license, the state fire marshal may require a new application.
(5) If the licensee's violations are subject to suspension for the first violation are categorized as major violations any subsequent or continuing major violation may be cause for termination unless the state fire marshal imposes additional suspensions for longer periods, if deemed appropriate.
(a) When considering punitive action for a major violation, the state fire marshal may take into consideration all major and minor violations that occurred within thirty-six months before the date of the current violation.
(b) Terms of disciplinary action - Minor violations of this chapter may be cause for disciplinary action in the following manner:
(i) First violation within a twelve-month period - Letter of written reprimand;
(ii) Second violation within a twelve-month period - Thirty-day suspension;
(iii) Third violation within a twelve-month period - Sixty-day suspension;
(iv) Fourth violation within a twelve-month period - Revocation of the license.
(c) The state fire marshal may increase or decrease the suspension period based on finding aggravating or mitigating factors as provided in WAC 212-17-465.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-465 Violation types and penalty assessments.
(1) ((Penalties shall be assessed according to violation type.
(2) The types of violations are:
(a) Least—Type I;
(b) Minimal—Type II;
(c) Moderate—Type III;
(d) Severe—Type IV.)) Penalties for fireworks violations are:
(a) Group one - Public safety violations that jeopardize public safety committed by nonlicensed persons. Penalties range from a warning to one thousand dollars per violation.
(b) Group two - Regulatory violations are regulatory violations that may be committed by both licensed or unlicensed persons. Penalties range from a warning to one thousand dollars per violation.
(c) Group three - License violations are licensing violations committed by licensees. Penalties range from a warning to one thousand dollars per violation.
(2) The state fire marshal may impose a different penalty than the standard penalties outlined in these schedules based on the following mitigating or aggravating circumstances:
(a) Mitigating circumstances are those that:
(i) May result in fewer days of suspension or a lower monetary penalty assessed. A licensee may demonstrate by implementation of safety or business policies or practices that reduce the risk of future violations. Examples include, but are not limited to:
(A) Having a signed acknowledgment of the practice on file for each employee;
(B) Having an employee training plan that includes annual training on fireworks laws.
(ii) May result in an increase for the period a license is suspended or revoked or increase in the monetary penalty assessed. This would include, but is not limited to, repeated offenses where citations have been issued for the same violation during a given time period.
(b) Aggravating circumstances are those that will result in increased days of suspension, increased monetary penalties, or revocation of a fireworks license. Examples include, but are not limited to:
(i) Business operations or behaviors that create an increased risk for a violation;
(ii) Repeated importation of fireworks that do not meet the standards when inspected by the U.S. Consumer Product Safety Commission;
(iii) Intentional commission of a violation;
(iv) Disregard for the safety of others that may or may not have resulted in an actual injury; or
(v) Repeated offenses where citations have been issued for the same violation during a given time period.
(c) In addition to the examples in (a) and (b) of this subsection, the state fire marshal will provide and maintain a list of business practices for reference as examples where business policies or practices may constitute mitigating or aggravating circumstances. This list will not be all inclusive for determining mitigating or aggravating circumstances, and may be modified by the state fire marshal. The list will be accessible to all stakeholders and the general public via the internet.
(3) The state fire marshal may offer a monetary option in lieu of suspension based on mitigating circumstances during a settlement conference as outlined in this chapter.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-470 Violation assessment at the local level.
(1) Local fire authorities ((shall)) will have the authority to issue civil penalty citations for violations of chapters 70.77 RCW and/or 212-17 WAC.
(2) A citation may impose a penalty or provide a warning.
(3) After issuing the citation notice, the citation ((shall)) will be forwarded to ((the office of)) the state fire marshal within ten days of issuance. ((Where possible,)) Each citation ((shall)) will be accompanied by a copy of the issuing authority's written report, inspection sheets, evidence receipt, or any other forms that are completed during the process of issuing citations.
(4) The ((office of the)) state fire marshal ((shall)) will review the information contained in the citation and any accompanying documentation.
(5) If the evidence exists that a violation occurred, the state fire marshal will issue ((a notice of civil penalty based upon the information contained in the citation and any accompanying documentation)) an administrative violation notice (AVN) which will include:
(a) A brief narrative description of the charged violation(s);
(b) The date(s) of the violation(s);
(c) A copy of the law(s) or regulation(s) allegedly violated;
(d) A summary of the licensee's or permit holder's options as provided in WAC 314-29-010; and
(e) The recommended penalty.
(6) The civil penalty will be delivered using registered mail.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-475 Hearings for civil penalties.
(1) Any person may request a hearing regarding the assessment of a civil penalty.
(2) Hearings requests ((shall)) will be filed with the office of the state fire marshal within fourteen days from the date of the service of civil penalty.
(3) Any person who requests a hearing ((shall)) will be entitled to a hearing.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-480 Informal conference.
(1) The ((office of the)) state fire marshal will provide an opportunity for a person to informally discuss a civil penalty that has been assessed against them.
(2) An informal conference may be requested prior to a request for a formal hearing; however, a formal hearing ((shall)) will be requested within twenty-eight days of the date of service of the notice of civil penalty.
(3) The request for an informal conference may be in any form((;)) and must:
(a) ((Shall)) Be addressed to the office of the state fire marshal; and
(b) ((Shall)) Clearly state the subject to be discussed.
(c) ((An informal conference concerning civil penalties shall)) Not exceed the fourteen days allowed for filing a formal hearing request if the hearing concerns civil penalties.
(d) If the parties agree, an informal conference may be held by telephone.
(e) As the result of an informal conference, the state fire marshal may, for good cause, amend, withdraw, or reduce a civil penalty.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-485 Formal hearing.
(1) A person may request a formal hearing at any time before or after an informal conference, as long as the twenty-eight day period for requesting a hearing has not lapsed.
(2) The office of the state fire marshal will arrange for a hearings officer to conduct the formal hearing through the office of administrative hearings.
(3) The office of ((the state fire marshal)) administrative hearings will set a date, time, and location for the formal hearing.
(4) The office of ((the state fire marshal)) administrative hearings will notify, by letter, the person requesting the hearing (or their designated representative) of the date, time, location and the hearings officer conducting the formal hearing.
(5) The hearings officer will hear the case and render a proposed opinion and order including recommended findings of fact and conclusions of law, according to chapter 34.05 RCW.
(6) The formal hearing ((shall)) will be conducted as follows:
(a) The hearings officer will act as an impartial third party.
(b) It is not necessary for the person that requested the hearing to be represented by legal council.
(c) Testimony ((shall)) will be taken under oath.
(d) All evidence of a type commonly relied upon by a reasonably prudent person in the conduct of their serious affairs is admissible.
(e) Hearsay evidence is admissible if it meets statutory standards for being reliable and trustworthy.
(7) The proposed opinion and order ((shall)) will be reviewed by the state fire marshal and, if accepted, finalized and issued as a final order.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-490 Penalty adjustment.
(1) The assessment of adjustment of penalties for amounts other than those set by chapter 70.77 RCW ((shall)) will be done only by the state fire marshal through a hearings process either formally or informally.
(2) The assessment of penalties for not being in conformance with chapters 70.77 RCW and/or 212-17 WAC may be made only after considering:
(a) The gravity and magnitude of the violation;
(b) The person's previous record;
(c) Such other considerations as the state fire marshal may consider appropriate.
(3) During a formal hearing or informal conference, ((the office of)) the state fire marshal may modify or adjust the citation, cited violations, or penalties assessed in order to meet the requirements of these rules and to ensure uniformity and consistency in their application statewide.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-495 Payment of civil penalty.
(1) The penalty ((shall)) must be paid to ((the office of)) the state fire marshal immediately after an order assessing a civil penalty becomes final by operation of law or on an appeal.
(2) The attorney general may bring an action in the name of the Washington state patrol, through the director of fire protection, in the superior court of Thurston County or of any county in which the violator may do business to collect any penalty imposed under chapter 70.77 RCW.
AMENDATORY SECTION (Amending WSR 05-12-033, filed 5/24/05, effective 6/24/05)
WAC 212-17-515 ((Type IV violations.)) Violation/penalty matrix.
(((1) Type IV violations are subject to penalties ranging from one hundred twenty-five dollars to one thousand dollars per day depending on instance and in accordance with WAC 212-17-390.
(2) Examples of Type IV violations include, but are not limited to:
(a) Possession of fifty dollars or more of 1.3G fireworks without the necessary license issued by the office of the state fire marshal and the required permit from the local authority having jurisdiction;
(b) Conducting a public fireworks display without the necessary license issued by the office of the state fire marshal and the required permit from the local authority having jurisdiction;
(c) Purchase of any amount of 1.3G fireworks without the necessary licenses issued by the office of the state fire marshal and/or, where required, the local authority having jurisdiction;
(d) Conducting a public display using illegal or unauthorized fireworks;
(e) Intentional or indiscriminate use of fireworks which injure someone or cause more than two hundred fifty dollars in property damage;
(f) Wholesale sales of fireworks without a valid Washington state wholesalers license;
(g) Importing, or causing to be imported, fireworks into the state of Washington without a valid Washington state importers license.))
REPEALER
The following sections of the Washington Administrative Code are repealed:
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