WSR 97-14-019

EMERGENCY RULES

WASHINGTON STATE PATROL

[Filed June 20, 1997, 4:50 p.m.]

Date of Adoption: June 19, 1997.

Purpose: To prescribe uniform state-wide standards for retail fireworks stands under chapter 212-17 WAC, Fireworks. note: This emergency rule rescinds WSR 97-11-041, filed on May 16, 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: The 1995 legislature amended chapter 70.77 RCW, requiring the agency to promulgate state-wide standards for fireworks retail stands. A committee composed of fire service officials and a representative of the fireworks industry worked during 1995 and 1996 to develop comprehensive state-wide standards for fireworks retail stands. On May 10, 1996, the agency promulgated the rules developed by this committee as an emergency WAC to be effective during the 1996 Fourth of July fireworks selling period. The emergency rules expired by operation of law September 10, 1996. Subsequently, the agency convened a new committee with expanded representation of the fire service agencies and of the fireworks industry to review the adequacy of the 1996 emergency rules and to develop permanent rules for fireworks retail stands. The legislature during the 1997 session again amended chapter 70.77 RCW; chapter 182, Laws of 1997.

Because it was not possible to adopt permanent rules before the 1997 July 4th fireworks season, it is necessary to adopt emergency rules. The process of adopting permanent rules has begun with the filing of a new CR-101 on June 18, 1997, with the Code Reviser. The agency is filing a notice of its intent to adopt these emergency rules as a permanent rule, and is actively undertaking the appropriate procedures to adopt these emergency rules as a permanent rule.

The emergency rules are required to protect the public health and safety. Without these rules there would be insufficient state-wide rules in place to regulate the safe operation of fireworks stands as the legislature intended. These regulations are necessary to ensure that people who work in retail fireworks stands and the public who visit these stands are provided reasonable protection against injury and death if an accident were to occur.

The emergency rules which are being filed with this notice are essentially the same as those developed by the committee which, during the fall and early winter of 1996, met to review the adequacy of the 1996 emergency rules and to develop permanent rules for fireworks retail stands.

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 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 7, amended 1, repealed 9.

Effective Date of Rule: Immediately.

June 19, 1997

R. M. Leichner

for 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.

(d) 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) "Following year" means the year immediately following the year in which a license or permit is issued.

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

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

(5) "Membrane material" means a thin, flexible, impervious material capable of being supported by an air pressure of 1.5 inches of water column (373 Pa).

(6) "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.

(7) "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.

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

(9) "Private way" means any privately owned driveway, lane, access way or similar parcel of land having a clear width of not less than eight feet essentially unobstructed from the ground to the sky which serves as access from private property to a public road.

(10) "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 and having a clear width of not less that ten feet.

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

(12) "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.

(13) "Temporary power drop" means an electrical service connection to a temporary stand.

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

(15) "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.

(16) "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.

(17) "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.

(18) "Uniform Building Code" means the edition currently adopted by the state of Washington.

(19) "Uniform Fire Code" means the edition currently adopted by the state of Washington.

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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) 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 be subject to the provisions of the Uniform Fire Code and the Uniform Building Code, and local ordinances.

(4) The use of temporary structures for the temporary sale or storage of common fireworks are exempt from the Uniform Building Code, 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 provisions of that county's or that city's building 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 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 from 12:00 noon on June 28 through 12:00 noon on July 6. 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. Fireworks may not be sold 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 from 6:00 p.m. on December 31 through 1:00 a.m. on January 1 of the following 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 by 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 fifty 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 locally adopted street, road and access standards.

(3) Any two retail fireworks stands shall be at least one hundred feet apart or shall be separated by a road, street or highway not less than thirty feet in width.

(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, except that flagging and marking shall not block a sidewalk or pedestrian pathway.

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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, such as a tank farm.

(6) Upon request by a licensee, the state fire marshal, with the concurrence of the local authority having jurisdiction, may modify any portion of this section provided that any modification shall not be more restrictive than the requirements herein.

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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. No parking shall 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 not be discharged within one hundred feet of a retail fireworks stand. Signs reading "NO FIREWORKS DISCHARGE WITHIN 100 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 the minimum flagged off area. Signs reading "NO SMOKING WITHIN 20 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.

(5) Upon request by a licensee, the state fire marshal, with the concurrence of the local authority having jurisdiction, may modify any portion of this section provided that any modification shall not be more restrictive than the requirements herein.

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NEW SECTION

WAC 212-17-21513 Stand use and construction. (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 Uniform 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 Uniform Fire Code. Any tent, canopy or temporary membrane material structure falling within the scope of the Uniform 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. If electrical power is supplied by an extension cord, the size of the cord, the length of the cord and the amperage and the voltage supplied shall be in compliance with the requirements of the National Electrical Code, current edition. The cord shall be protected as necessary from "drive-over" and other physical damage. No additional permits from a city or county or state official having jurisdiction shall be required for these temporary uses except as specified in subsection (5) of this section.

(3) All heating units shall be listed by a recognized testing laboratory and shall be used in accordance with the listing. Heating sources shall have "tip-over" and temperature overheat protection. All heating devices shall 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 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.

(5) Compliance with the National Electrical Code, current edition, shall 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 structures used for no other purpose.

(7) Upon request by a licensee, the state fire marshal, with the concurrence of the local authority having jurisdiction, may modify any portion of this section provided that any modification shall not be more restrictive than the requirements herein.

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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. Customers shall only be permitted inside a temporary retail fireworks stand that is greater than three hundred square feet and which meets minimum exit requirements of the Uniform Building Code and Uniform 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) Sleeping inside a retail fireworks stand or an associated temporary fireworks storage facility is prohibited.

(4) 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.

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

(6) Each retail fireworks stand shall be equipped with two approved, pressurized two-and-one-half gallon water-type fire extinguishers.

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

(8) 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.

(9) 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, other than customers, under the age of sixteen shall be allowed within a retail fireworks stand when it is open to the public.

(10) Retail fireworks stands may 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 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) Upon request by a licensee, the state fire marshal, with the concurrence of the local authority having jurisdiction, may modify any portion of this section provided that any modification shall not be more restrictive than the requirements herein.

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NEW SECTION

WAC 212-17-21517 Temporary fireworks storage associated with the retail fireworks stand operation. (1) Temporary fireworks storage is not permanent fireworks storage. Temporary fireworks storage is defined as 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 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 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 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 Uniform Building Code; or

(d) In a magazine which meets the minimum standards of Type 4 as prescribed by the Uniform Fire Code, and which is not less than ten feet from an inhabited building where the term "inhabited building" is defined as in the Uniform Building 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 twenty 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.

(10) Upon request by a licensee, the state fire marshal, with the concurrence of the local authority having jurisdiction, may modify any portion of this section provided that any modification shall not be more restrictive than the requirements herein.

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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 15 for the Fourth of July selling period or no later than 11:59 p.m., January 10 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.