6080-S2 AMH CL H4645.5

6080-S2 AMH CL H4645.5

2SSB 6080 - H COMM AMD Adopted 3-6-02

By Committee on Commerce & Labor

Strike everything after the enacting clause and insert the following:

"Sec. 1. RCW 70.74.010 and 1993 c 293 s 1 are each amended to read as follows:

As used in this chapter, unless a different meaning is plainly required by the context:

(1) The terms "authorized", "approved" or "approval" shall be held to mean authorized, approved, or approval by the department of labor and industries.

(2) The term "blasting agent" shall be held to mean and include any material or mixture consisting of a fuel and oxidizer, ((intended for blasting, not otherwise classified as an explosive, and in which none of the ingredients are classified as an explosive, provided that the finished product, as mixed and packaged for use or shipment, cannot be detonated when unconfined by means of a No. 8 test blasting cap)) that is intended for blasting and not otherwise defined as an explosive; if the finished product, as mixed for use or shipment, cannot be detonated by means of a number 8 test blasting cap when unconfined. A number 8 test blasting cap is one containing two grams of a mixture of eighty percent mercury fulminate and twenty percent potassium chlorate, or a blasting cap of equivalent strength. An equivalent strength cap comprises 0.40-0.45 grams of PETN base charge pressed in an aluminum shell with bottom thickness not to exceed 0.03 of an inch, to a specific gravity of not less than 1.4 g/cc., and primed with standard weights of primer depending on the manufacturer.

(3) The term "explosive" or "explosives" whenever used in this chapter, shall be held to mean and include any chemical compound or mechanical mixture that is commonly used or intended for the purpose of producing an explosion, that contains any oxidizing and combustible units, or other ingredients, in such proportions, quantities or packing, that an ignition by fire, by friction, by concussion, by percussion, or by detonation of any part of the compound or mixture may cause such a sudden generation of highly heated gases that the resultant gaseous pressures are capable of producing destructive effects on contiguous objects or of destroying life or limb. In addition, the term "explosives" shall include all material which is classified as ((~~class A, class B, and class C~~)) division 1.1, 1.2, 1.3, 1.4, 1.5, or 1.6 explosives by the ((~~federal~~)) Unites States department of transportation. For the purposes of this chapter small arms ammunition, small arms ammunition primers, smokeless powder not exceeding fifty pounds, and black powder not exceeding five pounds shall not be defined as explosives, unless possessed or used for a purpose inconsistent with small arms use or other lawful purpose.

(4) Classification of explosives shall include but not be limited to the following:

(a) ((~~CLASS A~~)) DIVISION 1.1 and 1.2 EXPLOSIVES: ((~~(Possessing~~)) Possess mass explosion or detonating hazard(())) and include dynamite, nitroglycerin, picric acid, lead azide, fulminate of mercury, black powder exceeding five pounds, blasting caps in quantities of 1001 or more, and detonating primers.

(b) ((~~CLASS B~~)) DIVISION 1.3 EXPLOSIVES: ((~~(Possessing~~)) Possess a minor blast hazard, a minor projection hazard, or a flammable hazard(())) and include propellant explosives, including smokeless ((~~propellants~~)) powder exceeding fifty pounds.

(c) ((~~CLASS C~~)) DIVISION 1.4, 1.5, and 1.6 EXPLOSIVES: ((~~(Including~~)) Include certain types of manufactured articles which contain ((~~class A or class B~~)) division 1.1, 1.2, or 1.3 explosives, or ((~~both~~)) all, as components, but in restricted quantities(())), and also include blasting caps in quantities of 1000 or less.

(5) The term "explosive-actuated power devices" shall be held to mean any tool or special mechanized device which is actuated by explosives, but not to include propellant-actuated power devices.

(6) The term "magazine", shall be held to mean and include any building or other structure, other than ((~~a factory~~)) an explosives manufacturing building, used for the storage of explosives.

(7) The term "improvised device" means a device which is fabricated with explosives or destructive, lethal, noxious, pyrotechnic, or incendiary chemicals and which is designed, or has the capacity, to disfigure, destroy, distract, or harass.

(8) The term "inhabited building", shall be held to mean and include only a building regularly occupied in whole or in part as a habitation for human beings, or any church, schoolhouse, railroad station, store, or other building where people are accustomed to assemble, other than any building or structure occupied in connection with the manufacture, transportation, storage, or use of explosives.

(9) The term "explosives manufacturing plant" shall be held to mean and include all lands, with the buildings situated thereon, used in connection with the manufacturing or processing of explosives or in which any process involving explosives is carried on, or the storage of explosives thereat, as well as any premises where explosives are used as a component part or ingredient in the manufacture of any article or device.

(10) The term "explosives manufacturing building", shall be held to mean and include any building or other structure (excepting magazines) containing explosives, in which the manufacture of explosives, or any processing involving explosives, is carried on, and any building where explosives are used as a component part or ingredient in the manufacture of any article or device.

(11) The term "railroad" shall be held to mean and include any steam, electric, or other railroad which carries passengers for hire.

(12) The term "highway" shall be held to mean and include any public street, public alley, or public road, including a privately financed, constructed, or maintained road that is regularly and openly traveled by the general public.

(13) The term "efficient artificial barricade" shall be held to mean an artificial mound or properly revetted wall of earth of a minimum thickness of not less than three feet or such other artificial barricade as approved by the department of labor and industries.

(14) The term "person" shall be held to mean and include any individual, firm, ((~~copartnership~~)) partnership, corporation, company, association, society, joint stock company, joint stock association, and including any trustee, receiver, assignee, or personal representative thereof.

(15) The term "dealer" shall be held to mean and include any person who purchases explosives or blasting agents for the sole purpose of resale, and not for use or consumption.

(16) The term "forbidden or not acceptable explosives" shall be held to mean and include explosives which are forbidden or not acceptable for transportation by common carriers by rail freight, rail express, highway, or water in accordance with the regulations of the federal department of transportation.

(17) The term "handloader" shall be held to mean and include any person who engages in the noncommercial assembling of small arms ammunition for his own use, specifically the operation of installing new primers, powder, and projectiles into cartridge cases.

(18) The term "handloader components" means small arms ammunition, small arms ammunition primers, smokeless powder not exceeding fifty pounds, and black powder as used in muzzle loading firearms not exceeding five pounds.

(19) The term "fuel" shall be held to mean and include a substance which may react with the oxygen in the air or with the oxygen yielded by an oxidizer to produce combustion.

(20) The term "motor vehicle" shall be held to mean and include any self-propelled automobile, truck, tractor, semi-trailer or full trailer, or other conveyance used for the transportation of freight.

(21) The term "natural barricade" shall be held to mean and include any natural hill, mound, wall, or barrier composed of earth or rock or other solid material of a minimum thickness of not less than three feet.

(22) The term "oxidizer" shall be held to mean a substance that yields oxygen readily to stimulate the combustion of organic matter or other fuel.

(23) The term "propellant-actuated power device" shall be held to mean and include any tool or special mechanized device or gas generator system which is actuated by a propellant or which releases and directs work through a propellant charge.

(24) The term "public conveyance" shall be held to mean and include any railroad car, streetcar, ferry, cab, bus, airplane, or other vehicle which is carrying passengers for hire.

(25) The term "public utility transmission system" shall mean power transmission lines over 10 KV, telephone cables, or microwave transmission systems, or buried or exposed pipelines carrying water, natural gas, petroleum, or crude oil, or refined products and chemicals, whose services are regulated by the utilities and transportation commission, municipal, or other publicly owned systems.

(26) The term "purchaser" shall be held to mean any person who buys, accepts, or receives any explosives or blasting agents.

(27) The term "pyrotechnic" shall be held to mean and include any combustible or explosive compositions or manufactured articles designed and prepared for the purpose of producing audible or visible effects which are commonly referred to as fireworks as defined in chapter 70.77 RCW.

(28) The term "small arms ammunition" shall be held to mean and include any shotgun, rifle, pistol, or revolver cartridge, and cartridges for propellant-actuated power devices and industrial guns. Military-type ammunition containing explosive bursting charges, incendiary, tracer, spotting, or pyrotechnic projectiles is excluded from this definition.

(29) The term "small arms ammunition primers" shall be held to mean small percussion-sensitive explosive charges encased in a cup, used to ignite propellant powder and shall include percussion caps as used in muzzle loaders.

(30) The term "smokeless ((~~propellants~~)) powder" shall be held to mean and include solid chemicals or solid chemical mixtures in excess of fifty pounds which function by rapid combustion.

(31) The term "user" shall be held to mean and include any natural person, manufacturer, or blaster who acquires, purchases, or uses explosives as an ultimate consumer or who supervises such use.

Words used in the singular number shall include the plural, and the plural the singular.

Sec. 2. RCW 70.74.191 and 1998 c 40 s 1 are each amended to read as follows:

The laws contained in this chapter and regulations prescribed by the department of labor and industries pursuant to this chapter shall not apply to:

(1) Explosives or blasting agents in the course of transportation by way of railroad, water, highway, or air under the jurisdiction of, and in conformity with, regulations adopted by the federal department of transportation, the Washington state utilities and transportation commission, and the Washington state patrol;

(2) The laboratories of schools, colleges, and similar institutions if confined to the purpose of instruction or research and if not exceeding the quantity of one pound;

(3) Explosives in the forms prescribed by the official United States Pharmacopoeia;

(4) The transportation, storage, and use of explosives or blasting agents in the normal and emergency operations of ((~~federal~~)) United States agencies and departments including the regular United States military departments on military reservations((,)); arsenals, navy yards, depots, or other establishments owned by, operated by, or on behalf of, the United States; or the duly authorized militia of any state ((~~or territory,~~)); or to emergency operations of any state department or agency, any police, or any municipality or county;

(5) A hazardous devices technician when carrying out normal and emergency operations, handling evidence, and operating and maintaining a specially designed emergency response vehicle that carries no more than ten pounds of explosive material or when conducting training and whose employer possesses the minimum safety equipment prescribed by the federal bureau of investigation for hazardous devices work. For purposes of this section, a hazardous devices technician is a person who is a graduate of the federal bureau of investigation hazardous devices school and who is employed by a state, county, or municipality;

(6) The importation, sale, possession, and use of fireworks as defined in chapter 70.77 RCW, signaling devices, flares, fuses, and torpedoes;

(7) The transportation, storage, and use of explosives or blasting agents in the normal and emergency avalanche control procedures as conducted by trained and licensed ski area operator personnel. However, the storage, transportation, and use of explosives and blasting agents for such use shall meet the requirements of regulations adopted by the director of labor and industries; ((~~and~~))

(8) The storage of consumer fireworks as defined in chapter 70.77 RCW pursuant to a forfeiture or seizure under chapter 70.77 RCW by the chief of the Washington state patrol, through the director of fire protection, or his or her deputy, or by state agencies or local governments having general law enforcement authority; and

(9) Any violation under this chapter if any existing ordinance of any city, municipality, or county is more stringent than this chapter.

Sec. 3. RCW 70.74.400 and 1993 c 293 s 8 are each amended to read as follows:

(1) Explosives, improvised devices, and components of explosives and improvised devices that are possessed, manufactured, delivered, imported, exported, stored, sold, purchased, transported, abandoned, detonated, or used, or intended to be used, in violation of a provision of this chapter are subject to seizure and forfeiture by a law enforcement agency and no property right exists in them.

(2) The law enforcement agency making the seizure shall notify the Washington state department of labor and industries of the seizure.

(3) Seizure of explosives, improvised devices, and components of explosives and improvised devices under subsection (1) of this section may be made if:

(a) The seizure is incident to arrest or a search under a search warrant;

(b) The explosives, improvised devices, or components have been the subject of a prior judgment in favor of the state in an injunction or forfeiture proceeding based upon this chapter;

(c) A law enforcement officer has probable cause to believe that the explosives, improvised devices, or components are directly or indirectly dangerous to health or safety; or

(d) The law enforcement officer has probable cause to believe that the explosives, improvised devices, or components were used or were intended to be used in violation of this chapter.

((~~(3)~~)) (4) A law enforcement agency shall destroy explosives seized under this chapter when it is necessary to protect the public safety and welfare. When destruction is not necessary to protect the public safety and welfare, and the explosives are not being held for evidence, a seizure pursuant to this section commences proceedings for forfeiture.

((~~(4)~~)) (5) The law enforcement agency under whose authority the seizure was made shall issue a written notice of the seizure and commencement of the forfeiture proceedings to the person from whom the explosives were seized, to any known owner of the explosives, and to any person who has a known interest in the explosives. The notice shall be issued within fifteen days of the seizure. The notice of seizure and commencement of the forfeiture proceedings shall be served in the same manner as provided in RCW 4.28.080 for service of a summons. The law enforcement agency shall provide a form by which the person or persons may request a hearing before the law enforcement agency to contest the seizure.

((~~(5)~~)) (6) If no person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of the explosives, improvised devices, or components within thirty days of the date the notice was issued, the seized explosives, devices, or components shall be deemed forfeited.

((~~(6)~~)) (7) If, within thirty days of the issuance of the notice, any person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of items seized, the person or persons shall be afforded a reasonable opportunity to be heard as to the claim or right. The hearing shall be before the chief law enforcement or the officer's designee of the seizing agency, except that the person asserting the claim or right may remove the matter to a court of competent jurisdiction if the aggregate value of the items seized is more than five hundred dollars. The hearing and any appeal shall be conducted according to chapter 34.05 RCW. The seizing law enforcement agency shall bear the burden of proving that the person (a) has no lawful right of ownership or possession and (b) that the items seized were possessed, manufactured, stored, sold, purchased, transported, abandoned, detonated, or used in violation of a provision of this chapter with the person's knowledge or consent.

((~~(7)~~)) (8) The seizing law enforcement agency shall promptly return the items seized to the claimant upon a determination that the claimant is entitled to possession of the items seized.

((~~(8)~~)) (9) If the items seized are forfeited under this statute, the seizing agency shall ((~~destroy~~)) dispose of the explosives by summary destruction. However, when explosives are destroyed either to protect public safety or because the explosives were forfeited, the person from whom the explosives were seized loses all rights of action against the law enforcement agency or its employees acting within the scope of their employment, or other governmental entity or employee involved with the seizure and destruction of explosives.

((~~(9)~~)) (10) This section is not intended to change the seizure and forfeiture powers, enforcement, and penalties available to the department of labor and industries pursuant to chapter 49.17 RCW as provided in RCW 70.74.390.

Sec. 4. RCW 70.77.126 and 1995 c 61 s 3 are each amended to read as follows:

"Fireworks" means any composition or device((~~, in a finished state, containing any combustible or explosive substance for the purpose of producing~~)) designed to produce a visible or audible effect by combustion((~~, explosion~~)), deflagration, or detonation, and ((~~classified as common~~)) which meets the definition of articles pyrotechnic or consumer fireworks or ((~~special~~)) display fireworks ((~~by the United States bureau of explosives or contained in the regulations of the United States department of transportation and designated as U.N. 0335 1.3G or U.N. 0336 1.4G as of April 17, 1995~~)).

Sec. 5. RCW 70.77.131 and 1995 c 61 s 4 are each amended to read as follows:

"((~~Special~~)) Display fireworks" means ((any fireworks designed primarily for exhibition display by producing visible or audible effects and classified as such by the United States bureau of explosives or in the regulations of the United States department of transportation and designated as U.N. 0335 1.3G as of April 17, 1995)) large fireworks designed primarily to produce visible or audible effects by combustion, deflagration, or detonation and includes, but is not limited to, salutes containing more than 2 grains (130 mg) of explosive materials, aerial shells containing more than 40 grams of pyrotechnic compositions, and other display pieces which exceed the limits of explosive materials for classification as "consumer fireworks" and are classified as fireworks UN0333, UN0334, or UN0335 by the United States department of transportation at 49 C.F.R. Sec. 172.101 as of the effective date of this section, and including fused setpieces containing components which exceed 50 mg of salute powder.

Sec. 6. RCW 70.77.136 and 1995 c 61 s 5 are each amended to read as follows:

"((~~Common~~)) Consumer fireworks" means ((any fireworks which are designed primarily for retail sale to the public during prescribed dates and which produce visual or audible effects through combustion and are classified as common fireworks by the United States bureau of explosives or in the regulations of the United States department of transportation and designated as U.N. 0336 1.4G as of April 17, 1995)) any small firework device designed to produce visible effects by combustion and which must comply with the construction, chemical composition, and labeling regulations of the United States consumer product safety commission, as set forth in 16 C.F.R. Parts 1500 and 1507 and including some small devices designed to produce audible effects, such as whistling devices, ground devices containing 50 mg or less of explosive materials, and aerial devices containing 130 mg or less of explosive materials and classified as fireworks UN0336 by the United States department of transportation at 49 C.F.R. Sec. 172.101 as of the effective date of this section, and not including fused setpieces containing components which together exceed 50 mg of salute powder.

NEW SECTION. Sec. 7. A new section is added to chapter 70.77 RCW to read as follows:

"Articles pyrotechnic" means pyrotechnic devices for professional use similar to consumer fireworks in chemical composition and construction but not intended for consumer use which meet the weight limits for consumer fireworks but which are not labeled as such and which are classified as UN0431 or UN0432 by the United States department of transportation at 49 C.F.R. Sec. 172.101 as of the effective date of this section.

Sec. 8. RCW 70.77.141 and 1982 c 230 s 4 are each amended to read as follows:

"Agricultural and wildlife fireworks" includes fireworks devices distributed to farmers, ranchers, and growers through a wildlife management program administered by the United States department of the interior or an equivalent state or local governmental agency.

Sec. 9. RCW 70.77.160 and 1997 c 182 s 1 are each amended to read as follows:

"Public display of fireworks" means an entertainment feature where the public is or could be admitted or allowed to view the display or discharge of ((~~special~~)) display fireworks.

Sec. 10. RCW 70.77.170 and 1995 c 369 s 44 are each amended to read as follows:

"License" means a nontransferable formal authorization which the chief of the Washington state patrol ((~~and~~)), through the director of fire protection ((~~are permitted~~)), is authorized to issue under this chapter to allow a person to engage in the act specifically designated therein.

Sec. 11. RCW 70.77.175 and 1961 c 228 s 12 are each amended to read as follows:

"Licensee" means any person ((~~holding~~)) issued a fireworks license in conformance with this chapter.

Sec. 12. RCW 70.77.180 and 1995 c 61 s 9 are each amended to read as follows:

"Permit" means the official ((~~permission~~)) authorization granted by a ((~~local public agency~~)) city or county for the purpose of establishing and maintaining a place within the jurisdiction of the ((~~local agency~~)) city or county where fireworks are manufactured, constructed, produced, packaged, stored, sold, or exchanged and the official ((~~permission~~)) authorization granted by a ((~~local agency~~)) city or county for a public display of fireworks.

NEW SECTION. Sec. 13. A new section is added to chapter 70.77 RCW to read as follows:

"Permittee" means any person issued a fireworks permit in conformance with this chapter.

Sec. 14. RCW 70.77.205 and 1995 c 61 s 11 are each amended to read as follows:

"Manufacturer" includes any person who manufactures, makes, constructs, fabricates, or produces any fireworks article or device but does not include persons who assemble or fabricate sets or mechanical pieces in public displays of fireworks or persons who assemble ((~~common~~)) consumer fireworks items or sets or packages containing ((~~common~~)) consumer fireworks items.

Sec. 15. RCW 70.77.210 and 1982 c 230 s 9 are each amended to read as follows:

"Wholesaler" includes any person who sells fireworks to a retailer or any other person for resale and any person who sells ((~~special~~)) display fireworks to public display licensees.

Sec. 16. RCW 70.77.215 and 1982 c 230 s 10 are each amended to read as follows:

"Retailer" includes any person who, at a fixed location or place of business, offers for sale, sells((~~, transfers, or gives common~~)), or exchanges for consideration consumer fireworks to a consumer or user.

Sec. 17. RCW 70.77.230 and 1982 c 230 s 11 are each amended to read as follows:

"Pyrotechnic operator" includes any individual who by experience and training has demonstrated the required skill and ability for safely setting up and discharging ((~~public displays of special~~)) display fireworks.

Sec. 18. RCW 70.77.236 and 1997 c 182 s 4 are each amended to read as follows:

(1) "New fireworks item" means any fireworks initially classified or reclassified as ((~~special or common~~)) articles pyrotechnic, display fireworks, or consumer fireworks by ((~~the United States bureau of explosives or in the regulations of~~)) the United States department of transportation after ((~~April 17, 1995~~)) the effective date of this section, and which comply with the construction, chemical composition, and labeling regulations of the United States consumer products safety commission, 16 C.F.R., Parts 1500 and 1507.

(2) The chief of the Washington state patrol, through the director of fire protection, shall classify any new fireworks item in the same manner as the item is classified by ((~~the United States bureau of explosives or in the regulations of~~)) the United States department of transportation((~~, unless~~)) and the United States consumer product safety commission. The chief of the Washington state patrol, through the director of fire protection, may determine((s)), stating reasonable grounds, that the item should not be so classified.

Sec. 19. RCW 70.77.250 and 1997 c 182 s 5 are each amended to read as follows:

(1) The chief of the Washington state patrol, through the director of fire protection, shall enforce and administer this chapter.

(2) The chief of the Washington state patrol, through the director of fire protection, shall appoint such deputies and employees as may be necessary and required to carry out the provisions of this chapter.

(3) The chief of the Washington state patrol, through the director of fire protection, shall adopt those rules relating to fireworks as are necessary for the implementation of this chapter.

(4) The chief of the Washington state patrol, through the director of fire protection, shall adopt those rules as are necessary to ensure statewide minimum standards for the enforcement of this chapter. Counties((,)) and cities((~~, and towns~~)) shall comply with these state rules. Any ((~~local rules~~)) ordinances adopted by ((~~local authorities~~)) a county or city that are more restrictive than state law shall have an effective date no sooner than one year after their adoption.

(5) The chief of the Washington state patrol, through the director of fire protection, may exercise the necessary police powers to enforce the criminal provisions of this chapter. This grant of police powers does not prevent any other state agency and city, county, or local government agency having general law enforcement powers from enforcing this chapter within the jurisdiction of the agency and city, county, or local government.

(6) The chief of the Washington state patrol, through the director of fire protection, shall adopt rules necessary to enforce the civil penalty provisions for the violations of this chapter. A civil penalty under this subsection may not exceed one thousand dollars per day for each violation and is subject to the procedural requirements under section 20 of this act.

(7) The chief of the Washington state patrol, through the director of fire protection, may investigate or cause to be investigated all fires resulting, or suspected of resulting, from the use of fireworks.

NEW SECTION. Sec. 20. A new section is added to chapter 70.77 RCW to read as follows:

(1) The penalty provided for in RCW 70.77.250(6) shall be imposed by a notice in writing to the person against whom the civil fine is assessed and shall describe the violation with reasonable particularity. The notice shall be personally served in the manner of service of a summons in a civil action or in a manner which shows proof of receipt. Any penalty imposed by RCW 70.77.250(6) shall become due and payable twenty-eight days after receipt of notice unless application for remission or mitigation is made as provided in subsection (2) of this section or unless application for an adjudicative proceeding is filed as provided in subsection (3) of this section.

(2) Within fourteen days after the notice is received, the person incurring the penalty may apply in writing to the chief of the Washington state patrol, through the director of fire protection, for the remission or mitigation of the penalty. Upon receipt of the application, the chief of the Washington state patrol, through the director of fire protection, may remit or mitigate the penalty upon whatever terms the chief of the Washington state patrol, through the director of fire protection, deems proper, giving consideration to the degree of hazard associated with the violation. The chief of the Washington state patrol, through the director of fire protection, may only grant a remission or mitigation that it deems to be in the best interests of carrying out the purposes of this chapter. The chief of the Washington state patrol, through the director of fire protection, may ascertain the facts regarding all such applications in a manner it deems proper. When an application for remission or mitigation is made, any penalty incurred under RCW 70.77.250(6) becomes due and payable twenty-eight days after receipt of the notice setting forth the disposition of the application, unless an application for an adjudicative proceeding to contest the disposition is filed as provided in subsection (3) of this section.

(3) Within twenty-eight days after notice is received, the person incurring the penalty may file an application for an adjudicative proceeding and may pursue subsequent review as provided in chapter 34.05 RCW and applicable rules of the chief of the Washington state patrol, through the director of fire protection.

(4) Any penalty imposed by final order following an adjudicative proceeding becomes due and payable upon service of the final order.

(5) The attorney general may bring an action in the name of the chief 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 this chapter.

(6) All penalties imposed under this section shall be paid to the state treasury and credited to the fire services trust fund and used as follows: At least fifty percent is for a statewide public education campaign developed by the chief of the Washington state patrol, through the director of fire protection, and the licensed fireworks industry emphasizing the safe and responsible use of legal fireworks; and the remainder is for statewide efforts to enforce this chapter.

Sec. 21. RCW 70.77.255 and 1997 c 182 s 6 are each amended to read as follows:

(1) Except as otherwise provided in this chapter, no person, without appropriate state licenses and city or county permits as required by this chapter may:

(a) Manufacture, import, possess, or sell any fireworks at wholesale or retail for any use;

(b) Make a public display of fireworks;

(d) Knowingly manufacture, import, transport, store, sell, or possess with intent to sell, as fireworks, explosives, as defined under RCW 70.74.010, that are not fireworks, as defined under this chapter.

(2) Except as authorized by a license and permit under subsection (1)(b) of this section or as provided in RCW 70.77.311, no person may discharge ((~~special~~)) display fireworks at any place.

(3) No person less than eighteen years of age may apply for or receive a license or permit under this chapter.

(4) No license or permit is required for the possession or use of ((~~common~~)) consumer fireworks lawfully purchased at retail.

Sec. 22. RCW 70.77.270 and 1997 c 182 s 8 are each amended to read as follows:

(1) The governing body of a city or county, or a designee, shall grant an application for a permit under RCW 70.77.260(1) if the application meets the standards under this chapter, and the applicable ordinances of the city or county. The permit shall be granted by June 10, or no less than thirty days after receipt of an application whichever date occurs first, for sales commencing on June 28 and on December 27; or by December 10, or no less than thirty days after receipt of an application whichever date occurs first, for sales commencing only on December 27.

(2) The chief of the Washington state patrol, through the director of fire protection, shall prescribe uniform, statewide standards for retail fireworks stands including, but not limited to, the location of the stands, setback requirements and siting of the stands, types of buildings and construction material that may be used for the stands, use of the stands and areas around the stands, cleanup of the area around the stands, transportation of fireworks to and from the stands, and temporary storage of fireworks associated with the retail fireworks stands. All cities and counties which allow retail fireworks sales shall comply with these standards.

(3) No retail fireworks permit may be issued to any applicant unless the retail fireworks stand is covered by a liability insurance policy with coverage of not less than fifty thousand dollars and five hundred thousand dollars for bodily injury liability for each person and occurrence, respectively, and not less than fifty thousand dollars for property damage liability for each occurrence, unless such insurance is not readily available from at least three approved insurance companies. If insurance in this amount is not offered, each fireworks permit shall be covered by a liability insurance policy in the maximum amount offered by at least three different approved insurance companies.

No wholesaler may knowingly sell or supply fireworks to any retail fireworks ((~~stand~~)) licensee unless the wholesaler determines that the retail fireworks ((~~stand~~)) licensee is covered by liability insurance in the same, or greater, amount as provided in this subsection.

Sec. 23. RCW 70.77.305 and 1995 c 369 s 46 are each amended to read as follows:

The chief of the Washington state patrol, through the director of fire protection, has the power to issue licenses for the manufacture, importation, sale, and use of all fireworks in this state, except as provided in RCW 70.77.311 and 70.77.395. A person may be licensed as a manufacturer, importer, or wholesaler under this chapter only if the person has a designated agent in this state who is registered with the chief of the Washington state patrol, through the director of fire protection.

Sec. 24. RCW 70.77.311 and 1995 c 61 s 17 are each amended to read as follows:

(1) No license is required for the purchase of agricultural and wildlife fireworks by government agencies if:

(a) The agricultural and wildlife fireworks are used for wildlife control or are distributed to farmers, ranchers, or growers through a wildlife management program administered by the United States department of the interior or an equivalent state or local governmental agency;

(b) The distribution is in response to a written application describing the wildlife management problem that requires use of the devices;

(d) It is limited to situations where other means of control are unavailable or inadequate.

(2) No license is required for religious organizations or private organizations or persons to purchase or use ((~~common~~)) consumer fireworks and such audible ground devices as firecrackers, salutes, and chasers if:

(a) Purchased from a licensed manufacturer, importer, or wholesaler;

(b) For use on prescribed dates and locations;

(d) A permit is obtained from the local fire official. No fee may be charged for this permit.

Sec. 25. RCW 70.77.315 and 1997 c 182 s 10 are each amended to read as follows:

Any person who desires to engage in the manufacture, importation, sale, or use of fireworks, except use as provided in RCW 70.77.255(4) ((~~and~~)), 70.77.311, and 70.77.395, shall make a written application to the chief of the Washington state patrol, through the director of fire protection, on forms provided by him or her. Such application shall be accompanied by the annual license fee as prescribed in this chapter.

Sec. 26. RCW 70.77.330 and 1995 c 369 s 48 are each amended to read as follows:

If the chief of the Washington state patrol, through the director of fire protection, finds that the granting of such license ((~~would~~)) is not ((be)) contrary to public safety or welfare, he or she shall issue a license authorizing the applicant to engage in the particular act or acts upon the payment of the license fee specified in this chapter. Licensees may transport the class of fireworks for which they hold a valid license.

Sec. 27. RCW 70.77.335 and 1982 c 230 s 23 are each amended to read as follows:

The authorization to engage in the particular act or acts conferred by a license to a person shall extend to ((~~salesmen~~)) sellers, authorized representatives, and other employees of such person.

Sec. 28. RCW 70.77.340 and 1982 c 230 s 24 are each amended to read as follows:

The original and annual license fee shall be as follows:

Manufacturer.................................... $ 500.00

Importer......................................... 100.00

Wholesaler............................. ......... 1,000.00

Retailer (for each separate retail outlet)....... 10.00

Public display for ((~~special~~)) display

fireworks................................. 10.00

Pyrotechnic operator for ((~~special~~)) display

fireworks................................. 5.00

Sec. 29. RCW 70.77.343 and 1997 c 182 s 12 are each amended to read as follows:

(1) License fees, in addition to the fees in RCW 70.77.340, shall be charged as follows:

Manufacturer.................................... $ 1,500.00

Importer......................................... 900.00

Wholesaler....................................... 1,000.00

Retailer (for each separate outlet).................. 30.00

Public display for ((~~special~~)) display

fireworks................................. 40.00

Pyrotechnic operator for ((~~special~~)) display

fireworks................................. 5.00

(2) All receipts from the license fees in this section shall be placed in the fire services trust fund and at least seventy-five percent of these receipts shall be used to fund a statewide public education campaign developed by the chief of the Washington state patrol and the licensed fireworks industry emphasizing the safe and responsible use of legal fireworks and the remaining receipts shall be used to fund statewide enforcement efforts against the sale and use of fireworks that are illegal under this chapter.

Sec. 30. RCW 70.77.381 and 1995 c 61 s 27 are each amended to read as follows:

(1) Every wholesaler shall carry liability insurance for each wholesale and retail fireworks outlet it operates in the amount of not less than fifty thousand dollars and five hundred thousand dollars for bodily injury liability for each person and occurrence, respectively, and not less than fifty thousand dollars for property damage liability for each occurrence, unless such insurance is not available from at least three approved insurance companies. If insurance in this amount is not offered, each wholesale and retail outlet shall be covered by a liability insurance policy in the maximum amount offered by at least three different approved insurance companies.

(2) No wholesaler may knowingly sell or supply fireworks to any retail ((~~outlet~~)) licensee unless the wholesaler determines that the retail ((~~outlet~~)) licensee carries liability insurance in the same, or greater, amount as provided in subsection (1) of this section.

Sec. 31. RCW 70.77.395 and 1995 c 61 s 22 are each amended to read as follows:

(1) It is legal to sell((,)) and purchase((~~, use, and discharge common~~)) consumer fireworks within this state from twelve o'clock noon to eleven o'clock p.m. on the twenty-eighth of June, from nine o'clock a.m. to eleven o'clock p.m. on each day from the twenty-ninth of June through the fourth of July, from nine o'clock a.m. to ((~~twelve~~)) nine o'clock ((~~noon~~)) p.m. on the ((~~sixth~~)) fifth of July ((~~of each year~~)), from twelve o'clock noon to eleven o'clock p.m. on each day from the twenty-seventh of December through the thirty-first of December of each year, and as provided in RCW 70.77.311. ((~~However, no common~~))

(2) Consumer fireworks may be ((~~sold~~)) used or discharged each day between the hours of twelve o'clock noon and eleven o'clock p.m. ((~~and nine o'clock a.m.~~)) on the twenty-eighth of June and between the hours of nine o'clock a.m. and eleven o'clock p.m. on the twenty-ninth of June to the third of July, ((~~except~~)) and on July 4th ((~~from~~)) between the hours of nine o'clock a.m. ((~~through~~)) and twelve o'clock midnight, and between the hours of nine o'clock a.m. and eleven o'clock p.m. on July 5th, and ((~~except~~)) from six o'clock p.m. on December 31st until one o'clock a.m. on January 1st of the subsequent year((: PROVIDED, That a city or county may prohibit the sale or discharge of common fireworks on December 31, 1995, by enacting an ordinance prohibiting such sale or discharge within sixty days of April 17, 1995)), and as provided in RCW 70.77.311.

(3) A city or county may enact an ordinance within sixty days of the effective date of this act to limit or prohibit the sale, purchase, possession, or use of consumer fireworks on December 27, 2002, through December 31, 2002, and thereafter as provided in RCW 70.77.250(4).

Sec. 32. RCW 70.77.401 and 1995 c 61 s 7 are each amended to read as follows:

No fireworks may be sold or offered for sale to the public as ((~~common~~)) consumer fireworks which are classified as sky rockets, or missile-type rockets, firecrackers, salutes, or chasers as defined by the United States department of transportation and the federal consumer products safety commission except as provided in RCW 70.77.311.

Sec. 33. RCW 70.77.405 and 1982 c 230 s 32 are each amended to read as follows:

Toy paper caps containing not more than twenty-five hundredths grain of explosive compound for each cap and trick or novelty devices not classified as ((~~common~~)) consumer fireworks may be sold at all times unless prohibited by local ordinance.

NEW SECTION. Sec. 34. A new section is added to chapter 70.77 RCW to read as follows:

(1) "Permanent storage" means storage of display fireworks at any time and/or storage of consumer fireworks at any time other than the periods allowed under RCW 70.77.420(2) and 70.77.425 and which shall be in compliance with the requirements of chapter 70.74 RCW.

(2) "Temporary storage" means the storage of consumer fireworks during the periods allowed under RCW 70.77.420(2) and 70.77.425.

Sec. 35. RCW 70.77.420 and 1997 c 182 s 18 are each amended to read as follows:

(1) It is unlawful for any person to store permanently fireworks of any class without a permit for such permanent storage from the city or county in which the storage is to be made. A person proposing to store permanently fireworks shall apply in writing to a city or county at least ten days prior to the date of the proposed permanent storage. The city or county receiving the application for a permanent storage permit shall investigate whether the character and location of the permanent storage as proposed ((~~would~~)) meets the requirements of the zoning, building, and fire codes or constitutes a hazard to property or ((be)) is dangerous to any person. Based on the investigation, the city or county may grant or deny the application. The city or county may place reasonable conditions on any permit granted.

(2) For the purposes of this section the temporary storing or keeping of ((~~common~~)) consumer fireworks when in conjunction with a valid retail sales license and permit shall comply with RCW 70.77.425 and the standards adopted under RCW 70.77.270(2) and not this section.

Sec. 36. RCW 70.77.425 and 1984 c 249 s 27 are each amended to read as follows:

It is unlawful for any person to store ((~~unsold~~)) permanently stocks of fireworks remaining unsold after the lawful period of sale as provided in the person's permit except in such places of permanent storage as the ((~~local fire official~~)) city or county issuing the permit approves. Unsold stocks of ((~~common~~)) consumer fireworks remaining after the authorized retail sales period from ((~~twelve~~)) nine o'clock ((~~noon~~)) a.m. on June 28th to twelve o'clock noon on July ((~~6th~~)) 5th shall be returned on or before July 31st of the same year, or remaining after the authorized retail sales period from twelve o'clock noon on December 27th to eleven o'clock p.m. on December 31st shall be returned on or before January 10th of the subsequent year, to the approved permanent storage facilities of a licensed fireworks wholesaler((,)) or to a magazine or permanent storage place approved by a local fire official.

Sec. 37. RCW 70.77.435 and 1997 c 182 s 20 are each amended to read as follows:

Any fireworks which are illegally sold, offered for sale, used, discharged, possessed, or transported in violation of the provisions of this chapter or the rules or regulations of the chief of the Washington state patrol, through the director of fire protection, ((~~shall be~~)) are subject to seizure by the chief of the Washington state patrol, through the director of fire protection, or his or her deputy, or by state agencies or local governments having general law enforcement authority. ((Any fireworks seized by legal process anywhere in the state may be disposed of by the chief of the Washington state patrol, through the director of fire protection, or the agency conducting the seizure, by summary destruction at any time subsequent to thirty days from such seizure or ten days from the final termination of proceedings under the provisions of RCW 70.77.440, whichever is later.))

Sec. 38. RCW 70.77.440 and 1997 c 182 s 21 are each amended to read as follows:

(1) In the event of seizure under RCW 70.77.435, proceedings for forfeiture shall be deemed commenced by the seizure. The chief of the Washington state patrol or a designee, through the director of fire protection or the agency conducting the seizure, under whose authority the seizure was made shall cause notice to be served within fifteen days following the seizure on the owner of the fireworks seized and the person in charge thereof and any person having any known right or interest therein, of the seizure and intended forfeiture of the seized property. The notice may be served by any method authorized by law or court rule including but not limited to service by certified mail with return receipt requested. Service by mail shall be deemed complete upon mailing within the fifteen-day period following the seizure.

(2) If no person notifies the chief of the Washington state patrol, through the director of fire protection or the agency conducting the seizure, in writing of the person's claim of lawful ownership or right to lawful possession of seized fireworks within thirty days of the seizure, the seized fireworks shall be deemed forfeited.

(3) If any person notifies the chief of the Washington state patrol, through the director of fire protection or the agency conducting the seizure, in writing of the person's claim of lawful ownership or possession of the fireworks within thirty days of the seizure, the person or persons shall be afforded a reasonable opportunity to be heard as to the claim or right. The hearing shall be before an administrative law judge appointed under chapter 34.12 RCW, except that any person asserting a claim or right may remove the matter to a court of competent jurisdiction if the aggregate value of the seized fireworks is more than five hundred dollars. The hearing before an administrative law judge and any appeal therefrom shall be under Title 34 RCW. In a court hearing between two or more claimants to the article or articles involved, the prevailing party shall be entitled to a judgment for costs and reasonable attorneys' fees. The burden of producing evidence shall be upon the person claiming to have the lawful right to possession of the seized fireworks. The chief of the Washington state patrol, through the director of fire protection or the agency conducting the seizure, shall promptly return the fireworks to the claimant upon a determination by the administrative law judge or court that the claimant is lawfully entitled to possession of the fireworks.

(4) When fireworks are forfeited under this chapter the chief of the Washington state patrol, through the director of fire protection or the agency conducting the seizure, may:

(a) Dispose of the fireworks by summary destruction at any time subsequent to thirty days from such seizure or ten days from the final termination of proceedings under this section, whichever is later; or

(b) Sell the forfeited fireworks and chemicals used to make fireworks, that are legal for use and possession under this chapter, to wholesalers or manufacturers, authorized to possess and use such fireworks or chemicals under a license issued by the chief of the Washington state patrol, through the director of fire protection. Sale shall be by public auction after publishing a notice of the date, place, and time of the auction in a newspaper of general circulation in the county in which the auction is to be held, at least three days before the date of the auction. The proceeds of the sale of the seized fireworks under this section may be retained by the agency conducting the seizure and used to offset the costs of seizure and/or storage costs of the seized fireworks. The remaining proceeds, if any, shall be deposited in the fire services trust fund and shall be used ((~~for the same purposes and in the same percentages as specified in RCW 70.77.343~~)) as follows: At least fifty percent is for a statewide public education campaign developed by the chief of the Washington state patrol, through the director of fire protection, and the licensed fireworks industry emphasizing the safe and responsible use of legal fireworks; and the remainder is for statewide efforts to enforce this chapter.

Sec. 39. RCW 70.77.495 and 1988 c 128 s 11 are each amended to read as follows:

((~~Nothing in this chapter shall be construed as permitting~~)) It is unlawful for any person to set off fireworks of any kind in forest, fallows, grass or brush covered land, either on his own land or the property of another, between April 15th and December 1st of any year, unless it is done under a written permit from the Washington state department of natural resources or its duly authorized agent, and in strict accordance with the terms of the permit and any other applicable law.

Sec. 40. RCW 70.77.510 and 1984 c 249 s 31 are each amended to read as follows:

It is unlawful for any person knowingly to sell, transfer, or agree to sell or transfer any ((~~special~~)) display fireworks to any person who is not a fireworks licensee as provided for by this chapter. A violation of this section is a gross misdemeanor.

Sec. 41. RCW 70.77.515 and 1984 c 249 s 32 are each amended to read as follows:

(1) It is unlawful for any person to offer for sale, sell ((~~or transfer~~)), or exchange for consideration, any ((~~common~~)) consumer fireworks to a consumer or user other than at a fixed place of business of a retailer for which a license and permit have been issued.

(2) No licensee may sell any fireworks to any person under the age of sixteen.

(3) A violation of this section is a gross misdemeanor.

Sec. 42. RCW 70.77.517 and 1984 c 249 s 34 are each amended to read as follows:

It is unlawful for any person, except in the course of continuous interstate transportation through any state, to transport fireworks from this state into any other state, or deliver them for transportation into any other state, or attempt so to do, knowing that such fireworks are to be delivered, possessed, stored, transshipped, distributed, sold, or otherwise dealt with in a manner or for a use prohibited by the laws of such other state specifically prohibiting or regulating the use of fireworks. A violation of this section is a gross misdemeanor.

This section does not apply to a common or contract carrier or to international or domestic water carriers engaged in interstate commerce or to the transportation of fireworks into a state for the use of ((~~federal~~)) United States agencies in the carrying out or the furtherance of their operations.

In the enforcement of this section, the definitions of fireworks contained in the laws of the respective states shall be applied.

As used in this section, the term "state" includes the several states, territories, and possessions of the United States, and the District of Columbia.

Sec. 43. RCW 70.77.520 and 1984 c 249 s 33 are each amended to read as follows:

It is unlawful for any person to allow any ((~~rubbish~~)) combustibles to accumulate in any premises in which fireworks are stored or sold or to permit a fire nuisance to exist in such a premises. A violation of this section is a misdemeanor.

Sec. 44. RCW 70.77.535 and 1994 c 133 s 14 are each amended to read as follows:

((~~This chapter does not prohibit~~)) The assembling, compounding, use, and display of articles pyrotechnic or special effects ((~~by any person engaged~~)) in the production of motion pictures, radio or television productions, or live entertainment ((~~when such use and display is an integral part of the production and such person~~)) shall be under the direction and control of a pyrotechnic operator licensed by the state of Washington and who possesses a valid permit from the ((~~local fire official~~)) city or county.

Sec. 45. RCW 70.77.555 and 1995 c 61 s 26 are each amended to read as follows:

(1) A ((~~local public agency~~)) city or county may provide by ordinance for a fee in an amount sufficient to cover all legitimate costs for all needed permits ((~~and local~~)), licenses, and authorizations from application to and through processing, issuance, and inspection, but in no case to exceed a total of one hundred dollars for any one ((~~year~~)) retail sales permit for any one selling season in a year, whether June 28th through July 5th or December 27th through December 31st, or a total of two hundred dollars for both selling seasons.

(2) A city or county may provide by ordinance for a fee in an amount sufficient to cover all legitimate costs for all display permits, licenses, and authorizations from application to and through processing, issuance, and inspection, not to exceed actual costs and in no case more than a total of five thousand dollars for any one display permit.

Sec. 46. RCW 70.77.575 and 1995 c 369 s 57 are each amended to read as follows:

(1) The chief of the Washington state patrol, through the director of fire protection, shall adopt by rule a list of the consumer fireworks that may be sold to the public in this state pursuant to this chapter. The chief of the Washington state patrol, through the director of fire protection, shall file the list by October 1st of each year with the code reviser for publication, unless the previously published list has remained current.

(2) The chief of the Washington state patrol, through the director of fire protection, shall provide the list adopted under subsection (1) of this section by November 1st of each year to all manufacturers, wholesalers, and importers licensed under this chapter, unless the previously distributed list has remained current.

Sec. 47. RCW 70.77.580 and 1995 c 369 s 58 are each amended to read as follows:

Retailers required to be licensed under this chapter shall post prominently at each retail ((~~outlet~~)) location a list of the consumer fireworks that may be sold to the public in this state pursuant to this chapter. The posted list shall be in a form approved by the chief of the Washington state patrol, through the director of fire protection. The chief of the Washington state patrol, through the director of fire protection, shall make the list available ((~~the list~~)).

NEW SECTION. Sec. 48. A new section is added to chapter 70.77 RCW to read as follows:

Civil proceedings to enforce this chapter may be brought in the superior court of Thurston county or the county in which the violation occurred by the attorney general or the attorney of the city or county in which the violation occurred on his or her own motion or at the request of the chief of the Washington state patrol, through the director of fire protection.

NEW SECTION. Sec. 49. A new section is added to chapter 70.77 RCW to read as follows:

In addition to criminal penalties, a person who violates this chapter is also liable for a civil penalty and for the costs incurred with enforcing this chapter and bringing the civil action, including court costs and reasonable investigative and attorneys' fees.

NEW SECTION. Sec. 50. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected."

2SSB 6080 - H COMM AMD

By Committee on Commerce & Labor

On page 1, line 2 of the title, after "laws;" strike the remainder of the title and insert "amending RCW 70.74.010, 70.74.191, 70.74.400, 70.77.126, 70.77.131, 70.77.136, 70.77.141, 70.77.160, 70.77.170, 70.77.175, 70.77.180, 70.77.205, 70.77.210, 70.77.215, 70.77.230, 70.77.236, 70.77.250, 70.77.255, 70.77.270, 70.77.305, 70.77.311, 70.77.315, 70.77.330, 70.77.335, 70.77.340, 70.77.343, 70.77.381, 70.77.395, 70.77.401, 70.77.405, 70.77.420, 70.77.425, 70.77.435, 70.77.440, 70.77.495, 70.77.510, 70.77.515, 70.77.517, 70.77.520, 70.77.535, 70.77.555, 70.77.575, and 70.77.580; adding new sections to chapter 70.77 RCW; and prescribing penalties."