WSR 97-11-041

EMERGENCY RULES

WASHINGTON STATE PATROL

[Filed May 16, 1997, 8:35 a.m.]

Date of Adoption: May 15, 1997.

Purpose: To prescribe uniform state-wide standards for retail fireworks stands under chapter 212-17 WAC, Fireworks. Note: This emergency rule rescinds WSR 97-11-023, filed on May 13, 1997.

Citation of Existing Rules Affected by this Order: Repealing WAC 212-17-190, 212-17-195, 212-17-200, 212-17-203, 212-17-205, 212-17-210 and 212-17-215; and amending WAC 212-17-185.

Statutory Authority for Adoption: RCW 70.77.270.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest; and that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

Reasons for this Finding: SSB 5997 from the 1995 legislature, required the agency to promulgate state-wide standards for fireworks retail stands. The agency has been working for the last two years to get these standards into permanent rule status. During the 1996 July 4th selling season, this agency had promulgated an emergency rule that has since lapsed because of input from the different fire service agencies that stated the rules were not strict enough to ensure public safety. Since then, this agency has been in the process of promulgating a new WAC with the consensus of the fire service and fireworks industry representatives. This process took longer than expected, but was ready to be filed as an emergency rule for this year's July selling season.

With the passage of ESSB 5970 this spring, this agency was forced to amend the proposed WAC to comply with the provisions from this bill. Governor Locke on April 23, 1997, signed this bill and did not leave this agency sufficient time to go back through the committee that had worked on the previous WAC revision. Therefore, the agency put together a WAC revision that ensures public safety based on comments received from the fire service and the Washington Association of Fire Chiefs. It is essential for the preservation of public health and safety during the July fireworks selling season, that these rules be adopted immediately.

By the nature of the contents and the combustible construction used in these stands, this provides a real potential for an incident to occur. We need these regulations to ensure that they provide the people who work in these stands and the public who visit these stands the best possible protection against injury if an incident were to occur. These standards provide that protection by limiting the possible ignition sources and sets the minimum safety requirements for the workers who will be inside these stands, to assure that in the case of an incident, they have the best chance to escape without any harm to themselves.

A synopsis of changes: WAC 212-17-185, this section sets the fee for the license and permit from the agency in accordance with chapter 70.77 RCW.

WAC 212-17-21503, this section provides consistent definitions used in this WAC that are consistent with the Uniform Building Code and the Uniform Fire Code.

WAC 212-17-21505, this section is the general provisions section that stipulates the state the regulatory function in the construction and use of temporary use of fireworks stands. This also preempts all local authority in these issues.

WAC 212-17-21507, this section regulates the transportation of fireworks to comply with all federal, state and local requirements. It is very important to assure that they transport fireworks in proper containers and are labeled according to the Department of Transportation standards. These labeling standards assist fire departments in identifying vehicles that are carrying fireworks when responding to incidents.

WAC 212-17-21509, this section regulates the distance between other fireworks stands and set back requirements from other hazards. Set back requirements are designed to keep the stands from being a hazard to an adjacent exposure and protect the stand from another exposure. These stands are generally made from wood and other combustible materials and with the contents of fireworks, provide a great fire hazard potential, too [not] only to the stand itself, but also to anything close to the stand.

WAC 212-17-21511, this section regulates the area around the stand. With the obvious nature of the contents of the stand and the combustible construction of the stand, strict requirements are needed to ensure that they reduce the potential of a fire being started from outside the stand and spreading to the stand itself.

WAC 212-17-21513, this section provides the requirements for the stand use and construction. Based on the contents of these stands and the combustible nature of the stand itself, controlling all possible ignition sources within and around the stand is very imperative. By limiting the size of the stand, this ensures that the stand can only store a relative small amount of fireworks in the stand itself. This also reduces the number of workers who will be working in these stands, thus reducing the potential to injury of people during an incident.

WAC 212-17-21515, this section regulates the operation of the stands. This section sets the minimum safety requirements for the operation of the stand. Because of the nature of the contents of the stands and combustible construction, they need strict standards in this area to ensure the safety to the workers inside the stand and the public who will visit these stands. This section also sets the minimum age in which fireworks may be purchased. This age limit was based on information relating to fireworks injuries. This information stated that most fireworks injuries for children occur between the ages of seven and fifteen. Therefore, the agency set the age limit for purchase at sixteen years of age.

WAC 212-17-21521, this section regulates the temporary storage of fireworks associated with the retail stand. Because the size of the stand limits the total storage of the fireworks, they need temporary storage for the stands. It is very imperative that local jurisdictions know where these storage locations are and they meet that [the] building and fire code regulations for these locations. There have been instances in the past where they stored fireworks in the family vehicle and parked in the family garage or at an apartment building which do not met [meet] building and fire code regulations for that kind of storage. The local jurisdictions need these requirements to control the storage of fireworks.

WAC 212-17-21519, this section regulates the cleanup of the area where stands are.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 7, amended 1, repealed 9.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 7, amended 1, repealed 9.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 7, amended 1, repealed 9.

Number of Sections Adopted using Negotiated Rule Making: New 7, amended 1, repealed 9; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.

Effective Date of Rule: Immediately.

May 15, 1997

Annette M. Sandberg

Chief

AMENDATORY SECTION (Amending Order FPS 88-01, filed 3/31/88)

WAC 212-17-185 ((Retailers of fireworks--General.)) License and permit. (1) Persons desiring to engage in the business of selling fireworks at retail shall secure a license from the director of the Washington state patrol fire protection bureau.

(2) In addition to the state license, 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 ((ten)) forty dollars.

(b) License applications shall be made on or before ((June 10)) 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.

((Applicants are cautioned to first determine whether a local retail sales permit for fireworks can be obtained.)) (3) A retailer's license to sell fireworks shall not 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.

[Statutory Authority: Chapter 70.77 RCW. 88-08-027 (Order FPS 88-01), 212-17-185, filed 3/31/88. Statutory Authority: RCW 70.77.250. 84-23-009 (Order FM 84-05), 212-17-185, filed 11/9/84. Statutory Authority: RCW 70.77.250 and chapter 48.48 RCW. 82-22-068 (Order FM 82-10), 212-17-185, filed 11/2/82.]

NEW SECTION

WAC 212-17-21503 Definitions. (1) "Common fireworks" means those fireworks defined as common fireworks in RCW 70.77.136.

(2) "License" means a license as defined in RCW 70.77.170.

(3) "Magazine" means a structure as defined in Section 214 of the Uniform Building Code.

(4) "Permanent fireworks storage" means the storage of fireworks associated with retail fireworks activities when the period of time of storage is other than or longer than that specified for temporary storage.

(5) "Permanent retail or wholesale structure" means an enclosure or shelter erected for a period of thirty days or more used for the sales, at retail or wholesale, of fireworks of any kind.

(6) "Permanent storage structure" means a building or other structure used to store any fireworks not authorized within the scope of a retail fireworks stand permit.

(7) "Permit" means a permit as defined in RCW 70.77.180.

(8) "Recognized testing laboratory" means a nationally recognized testing laboratory accepted by the state fire marshal.

(9) "Subsequent year" means the year immediately following the calendar year for which a license or permit is issued.

(10) "Temporary fireworks storage" means storage associated with retail fireworks sales and may only be from June 13 through July 31 and from December 12 through January 10 of the subsequent year.

(11) "Temporary retail fireworks stand" means a temporary structure used for the retail sales of common fireworks.

(12) "Temporary storage structure" means a building or other structure used for storage of common fireworks directly related to a retail fireworks stand and authorized within the scope of a retail fireworks stand permit.

(13) "Temporary structure" means an enclosure or shelter erected for a period of less than thirty days and not otherwise defined in the Uniform Fire Code as a tent or canopy.

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NEW SECTION

WAC 212-17-21505 General provisions. (1) The state of Washington hereby fully occupies the entire field of regulation relating to the construction and use of temporary 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 common 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 common fireworks from temporary structures these rules preempt that city's or that county's authority to enact or enforce any other regulations.

(3) Retail sale of fireworks from permanent structures is prohibited.

Exception: Fireworks retail outlets legally in operation in permanent structures and subject to the state building code on April 30, 1997.

(4) The use of temporary structures for the temporary sale or storage of common fireworks are exempt from the Uniform Building Code, the Uniform 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 portions of that city's or that county's building code or fire code which are not in conflict with this rule are not hereby preempted or affected.

(5) Every license issued shall be for the period from January 1 of the year for which the application is made through January 31 of the subsequent year or the remaining portion thereof.

(6) Only Class C common 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 and discharged from 12:00 noon on June 28 through 12:00 noon on July 6. Fireworks may not be sold or discharged between the hours of 11:00 p.m. and 9:00 a.m. from June 28 through July 3. Fireworks may not be sold or discharged from 12:00 midnight on July 4 through 9:00 a.m. on July 5. Fireworks may not be sold or discharged from 11:00 p.m. on July 5 through 9:00 a.m. on July 6.

(8) Except as limited by local ordinance, fireworks may be sold and discharged from 6:00 p.m. on December 31 through 1:00 a.m. on January 1 of the subsequent year.

(9) Licensees shall familiarize all persons working in a retail fireworks stand with the provisions of these rules.

(10) The state fire marshal and the local authority having jurisdiction shall comply with the provisions of RCW 43.05.005 in the application of this rule. 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 immediate revocation of the license or permit, closure of the fireworks sales or storage structure, the seizure of some or all of the fireworks, and other criminal penalties as specified in law.

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NEW SECTION

WAC 212-17-21507 Transportation. When transporting fireworks, licensees shall comply with all federal, state and local transportation requirements, provided that, upon request of the licensee, the local authority having jurisdiction may waive or modify the local transportation requirements. Nothing in these rules shall restrict the right of any person to transport, in a private vehicle, fireworks which have been legally purchased from a retail fireworks licensee.

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NEW SECTION

WAC 212-17-21509 Location. (1) Activities or uses subject to this rule shall 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 stands shall not be located more than one hundred feet from a private access 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 access way shall be determined by the local authority having jurisdiction, but shall not exceed the requirements of the Uniform Fire Code.

(3) Retail fireworks stands shall be at least one hundred feet apart.

(4) Retail fireworks stands shall be located as required by Table 1 in this section. The minimum required area surrounding the stand shall be marked or flagged.

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(5) Retail fireworks stands shall not be located closer than one hundred feet from any flammable or combustible liquid or gas dispensing device, nor less than three hundred feet from any flammable or combustible liquid or gas bulk storage or dispensing facility.

(6) Each retail fireworks stand must provide adequate parking area for not less than ten customer vehicles.

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NEW SECTION

WAC 212-17-21511 Area around the retail fireworks stand. (1) The minimum areas around the retail fireworks stand specified in WAC 212-17-21509 shall be kept free of accumulation of dry grass, dry brush and combustible debris.

(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 not be discharged within three hundred feet of a retail fireworks stand. Signs reading "NO FIREWORKS DISCHARGE WITHIN 300 FEET" in letters at least two inches high, with a principal stroke of not less than one-half inch, on contrasting background, shall be conspicuously posted on all four sides of the stand.

(4) No smoking shall be allowed within the retail fireworks stand or within one hundred feet. Signs reading "NO SMOKING WITHIN 100 FEET" in letters at least two inches high, with principal stroke of not less than one-half inch, on a contrasting background, shall be conspicuously posted on all four sides of the stand.

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NEW SECTION

WAC 212-17-21513 Stand use and construction. (1) Fireworks may be sold from temporary, stable structures made from wood, metal, fiberglass or other like material.

(a) Temporary retail fireworks stands shall not exceed four hundred square feet in area.

Exception: Temporary retail fireworks stands not exceeding ten feet in width may be up to one hundred feet in length.

(b) Sales from tents, canopies and stands constructed primarily of natural or synthetic cloth or fabric used in conjunction with a stable framework are prohibited.

(c) Any natural or synthetic cloth or fabric used in construction of a retail fireworks stand shall be made from fire retardant material or treated with a fire retardant as identified in the current edition of the Uniform Fire Code.

(2) Each temporary retail fireworks stand must have at least two exits, not less than twenty-eight inches in width, located at opposite ends of the structure. Travel distance to an exit shall not exceed twenty-five feet. Exits must remain unlocked and unobstructed during the hours of operation or when the stand is occupied.

(3) Battery powered equipment, electrical equipment and electrical cords which are used in conjunction with a retail fireworks stand or a temporary storage structure must be listed by a recognized laboratory and used in accordance with that listing.

(4) No heating device of any type shall be allowed within a retail fireworks stand. No heating device with an open flame or exposed heating element shall be used within fifty feet of a retail fireworks stand.

(5) Generators which use combustible fuel and which are at least twenty feet from the retail fireworks stand or the temporary fireworks storage structure shall be allowed. Generator fuel shall be limited to not more than five gallons and stored at least twenty feet from all stands.

(6) All electrical wiring shall comply with the state electrical code.

(7) Retail sales of fireworks and other products which are holiday related shall be from buildings used for no other purpose.

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NEW SECTION

WAC 212-17-21515 Operation of retail fireworks stands. (1) A clear aisle or walkway not less than twenty-four inches wide shall be maintained inside the full length of the structure.

(2) Sleeping inside a retail fireworks stand or an associated temporary fireworks storage facility is prohibited.

(3) The location of the nearest permanently mounted telephone must be posted inside the retail fireworks stand and persons working in the stand shall be informed of that location.

(4) The local emergency telephone number shall be conspicuously posted inside the retail fireworks stand.

(5) Each retail fireworks stand shall be equipped with two approved, pressurized two-and-one-half gallon water-type fire extinguishers and other fire extinguishers as may reasonably be required by the local authority having jurisdiction.

(6) No open flames nor any type of open flame equipment shall be allowed in any retail fireworks stand.

(7) Retail fireworks stands shall be locked 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.

(8) At least one adult person, eighteen years of age or older shall be present at all times in every retail fireworks stand during the hours of sale to the public and shall be responsible for supervision of the retail fireworks stand and its operation. No person under the age of sixteen shall be allowed within a retail fireworks stand when it is open to the public. Customers shall not be allowed inside temporary retail fireworks stands.

(9) Retail fireworks stands may be inspected prior to opening for business and other inspections may occur on other days as warranted but there shall be no additional charge for all such inspections.

(10) The sale of fireworks to persons under the age of sixteen years is prohibited. A sign reading "No sale of fireworks to persons under the age of sixteen years. PHOTO ID REQUIRED" in two-inch block letters shall be conspicuously posted on the front of each retail fireworks stand. Sellers shall require proof of age by means of display of a driver's license or photo identification card showing date of birth issued by a state, federal or foreign government. No other forms of identification shall be accepted.

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NEW SECTION

WAC 212-17-21517 Temporary fireworks storage associated with the retail fireworks stand operation. (1) Temporary fireworks storage shall be in accordance with this section. Permanent fireworks storage is subject to the Uniform Fire Code and the Uniform 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.

(3) A temporary fireworks storage facility or a temporary fireworks storage location shall 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) 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 fifty 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 one hundred feet from an inhabited building where the term "inhabited building" is defined as in the Uniform Building Code, current edition; or

(d) In a magazine which meets the minimum standards of Type 4 as prescribed by the Uniform Fire Code, current edition; 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 one hundred feet from an inhabited building where the term "inhabited building" is defined as in the Uniform Building Code.

(7) 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) 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.

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NEW SECTION

WAC 212-17-21519 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 be completed no later than 11:59 p.m., July 13 for the Fourth of July selling period or no later than 11:59 p.m., January 8 for the New Year's Eve selling season.

(4) Failure of the licensee to comply with subsection (3) of this section shall 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.

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REPEALER

The following sections of the Washington Administrative Code are repealed:

WAC 212-17-190 Retailers of fireworks--Sales dates.

WAC 212-17-195 Retailers of fireworks--Sales locations.

WAC 212-17-200 Retailers of fireworks--Safety inspection.

WAC 212-17-203 Retailers of fireworks--List to be posted.

WAC 212-17-205 Retailers of fireworks--No smoking signs.

WAC 212-17-210 Retailers of fireworks--Smoking and discharge of fireworks.