Report Title:

Fireworks; Article Pyrotechnic

Description:

Updates state law with respect to fireworks and better regulation of article pyrotechnic.

HOUSE OF REPRESENTATIVES

H.B. NO.

1817

TWENTY-THIRD LEGISLATURE, 2006

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to fireworks.

 

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

SECTION 1. The purpose of this Act is to:

(1) Use common terminology that is consistent with the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives;

(2) Delete all references to the defunct "United States Bureau of Explosives";

(3) Include and define articles pyrotechnic so as to regulate the importation, storage, transferring, sale, and use of those devices; and

(4) Include articles pyrotechnic in the term "display".

SECTION 2. Section 132D-2, Hawaii Revised Statutes, is amended by adding two new definitions to be appropriately inserted and to read as follows:

""Aerial devices" means any firework containing 130 milligrams or less of explosive materials, which produces an audible or visible effect and which is designed to rise into the air and explode or detonate in the air or to fly about, above the ground and which is prohibited for use by any person who does not have a permit for display issued by a county under section 132D-16. "Aerial devices", classified as fireworks under UN0336 and UN0337 by the United States Department of Transportation as set forth in title 49 Code of Federal Regulations, include firework items commonly known as bottle rockets, sky rockets, missile-type rockets, helicopters, torpedoes, daygo bombs, Roman candles, flying pigs, and jumping jacks (which move about the ground farther than a circle with a radius of twelve feet as measured from the point where the item was placed and ignited), aerial shells, and mines.

"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."

SECTION 3. Section 132D-2, Hawaii Revised Statutes, is amended as follows:

1. By amending the definition of "common fireworks" to read:

""[Common] Consumer fireworks" means any firework designed primarily for retail sale to the public during [prescribed] authorized dates and times and which produces visible or audible effects [through] by combustion and which is [classified as common fireworks by the United States Bureau of Explosives or contained in the regulations of the United States Department of Transportation and designated as UN 0336 1.4G.] designed to remain on or near the ground and which, while stationary or spinning rapidly on or near the ground, emits smoke, a shower of colored sparks, whistling effects, flitter sparks, or balls of colored sparks, and combination items which contain one or more of these effects. "Consumer fireworks" shall comply with the construction, chemical composition, and labeling regulations of the United States Consumer Product Safety Commission as set forth in Title 16 Code of Federal Regulations, and fireworks classified as UN0336 and UN0337 by the United States Department of Transportation as set forth in Title 49 Code of Federal Regulations. "Consumer fireworks" include firework items commonly known as firecrackers (which are single paper cylinders not exceeding one and one-half inches in length excluding the fuse and one quarter of an inch in diameter and contain a charge of not more than fifty milligrams of pyrotechnic composition), snakes, sparklers, fountains, and cylindrical or cone fountains (which emit effects up to a height not greater than twelve feet above the ground), illuminating torches, bamboo cannons, whistles, toy smoke devices, wheels, and ground spinners (which when ignited remain within a circle with a radius of twelve feet as measured from the point where the item was placed and ignited), novelty or trick items, combination items, and other fireworks of like construction which are designed to produce the same or similar effects."

2. By amending the definition of "fireworks" to read:

""Fireworks" means any combustible or explosive composition, or any substance or combination of substances, or article prepared for the purpose of producing a visible or audible effect by combustion, explosion, deflagration or detonation and [classified as common] which meets the definition of aerial devices or consumer or [special] display fireworks [by the United States Bureau of Explosives or] as defined by this section and contained in the regulations of the United States Department of Transportation [and designated as UN 0335 1.3G or UN 0336 1.4G.] as set forth in Title 49 Code of Federal Regulations. The term "fireworks" shall not include any explosives and pyrotechnics regulated under chapter 396 or automotive safety flares, nor shall the term be construed to include toy pistols, toy cannons, toy guns, party poppers, pop-its or other devices which contain twenty-five hundredths of a grain or less of [explosives] explosive substance. [The term "fireworks" also shall not include any explosives and pyrotechnics regulated under chapter 396.]"

3. By amending the definition of "public display" to read:

""[Public display"] Display" means [a public exhibition and] the use of [fireworks] aerial devices, display fireworks, or articles pyrotechnic for [commercial activities] any activity [(]including [such activities as] movie or television production[)]."

4. By amending the definition of "special display fireworks" to read:

""[Special] Display fireworks" means any firework designed primarily for exhibition display by producing visible or audible effects and classified as [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 [UN 0335 1.3G and which are] UN0333 or UN0335, and includes but is not limited to salutes containing more than two grains (130 milligrams) of explosive materials, aerial shells containing more than forty grams of pyrotechnic compositions, and other display pieces which exceed the limits of explosive materials for classification as "consumer fireworks". "Display fireworks" also includes fused setpieces containing components which together exceed fifty milligrams of salute power. The use of display fireworks is prohibited for use by any person who does not have a display permit issued by a county."

SECTION 4. Section 132D-3, Hawaii Revised Statutes, is amended to read as follows:

"§132D-3 Permissible uses of [non-aerial common] consumer fireworks. [Non-aerial common] Consumer fireworks may be set off, ignited, discharged, or otherwise caused to explode within the State only:

(1) From 9:00 p.m. on New Year's Eve to 1:00 a.m. on New Year's Day; from 7:00 a.m. to 7:00 p.m. on Chinese New Year's Day; and from 1:00 p.m. to 9:00 p.m. on the Fourth of July; or

(2) From 9:00 a.m. to 9:00 p.m. as allowed by permit pursuant to section 132D-10 if the proposed cultural use is to occur at any time other than during the periods prescribed in paragraph (1);

provided that the purchase of not more than 5,000 individual [non-aerial common] consumer fireworks commonly known as firecrackers shall be allowed under each permit."

SECTION 5. Section 132D-4, Hawaii Revised Statutes, is amended to read as follows:

"§132D-4 Permissible uses of [special] display fireworks, articles pyrotechnic and aerial [common fireworks.] devices. [Special] Display fireworks, articles pyrotechnic and aerial [common fireworks] devices may be purchased, set off, ignited, or otherwise caused to explode in the State only if for [public] display and permitted in writing pursuant to sections 132D-10 and 132D-16."

SECTION 6. Section 132D-5, Hawaii Revised Statutes, is amended to read as follows:

"[[]§132D-5[]] General prohibitions. (a) It shall be unlawful for any person without a permit to:

(1) Remove or extract the pyrotechnic contents from any fireworks;

(2) Throw any ignited fireworks from a moving vehicle; or

(3) Set off, ignite, discharge, or otherwise cause to explode any fireworks:

(A) At any time not within the periods for use prescribed in section 132D-3, unless permitted pursuant to section 132D-10;

(B) Within one thousand feet from any operating hospital, convalescent home, home for the elderly, or animal hospital;

(C) In any school building, or on any school grounds and yards without first obtaining authorization from appropriate school officials;

(D) On any highway, alley, street, sidewalk, or other public way; in any park; within fifty feet from a canefield; or within one thousand feet from any building used for public worship during the periods when services are held; except as may be permitted pursuant to section 132D-10; and

(E) Within five hundred feet from any hotel.

(b) It shall be unlawful to purchase consumer fireworks more than five calendar days before the applicable time period for use prescribed in section 132D-3.

(c) It shall be unlawful to sell consumer fireworks after 12:00 a.m. on New Year's Day, 6:00 p.m. on Chinese New Year's Day and 8:00 p.m. on the Fourth of July."

SECTION 7. Section 132D-7, Hawaii Revised Statutes, is amended to read as follows:

"§132D-7 License or permit required. A person shall not:

(1) Import, store, offer to sell, or sell, at wholesale or retail, aerial [common fireworks, special fireworks, or non-aerial common] devices or consumer fireworks, unless the person has a valid license issued by the county;

(2) Possess aerial [common fireworks or special] devices, display fireworks, or articles pyrotechnic without a valid license to import, store, or sell aerial [common fireworks or special] devices, display fireworks, or articles pyrotechnic, or a valid permit as provided for in this chapter[; or

(3) Purchase non-aerial common fireworks with a permit under section 132D-10 more than five calendar days before the applicable time period for use prescribed in section 132D-3 in the county that issued the permit]."

SECTION 8. Section 132D-8, Hawaii Revised Statutes, is amended by amending subsections (c) and (d) to read as follows:

"(c) It shall be unlawful for any [person,] licensee, other than a wholesaler who is selling or transferring fireworks or articles pyrotechnic, to a licensed retailer, to sell or offer to sell, exchange for consideration, give, transfer, or donate any fireworks or articles pyrotechnic at any time to any person who does not present a permit duly issued as required by section 132D-10 or 132D-16. The permit shall be signed by the seller or transferor at the time of sale or transfer of the fireworks[,] or articles pyrotechnic, and the seller or transferor shall indicate on the permit the amount and type of fireworks or articles pyrotechnic sold or transferred. No person shall sell or deliver fireworks to any permittee in any amount in excess of the amount specified in the permit, less the amount shown on the permit previously to have been purchased; provided that no fireworks shall be sold to a permittee holding a permit issued for purposes of section 132D-3, more than five calendar days before the applicable time period under section 132D-3.

(d) Aerial [common fireworks, special] devices, display fireworks, or [both,] articles pyrotechnic shall only be sold or transferred by a wholesaler to a person with a valid permit under sections 132D-10 and 132D-16. No person with a valid permit under sections 132D-10 and 132D-16 shall sell or transfer aerial [common fireworks, or special] devices, display fireworks, [or both] or articles pyrotechnic to any other person."

SECTION 9. Section 132D-8.5, Hawaii Revised Statutes, is amended to read as follows:

"[[]§132D-8.5[]] Importation of aerial [common fireworks, special] devices, display fireworks, or [both,] articles pyrotechnic for [public] display. Aerial [common fireworks, special] devices, display fireworks, or [both,] articles pyrotechnic shall only be imported and stored, if necessary, in an amount sufficient for an anticipated three-month inventory; provided that if a licensee under section 132D-7 provides aerial [common fireworks, special] devices, display fireworks, or [both,] articles pyrotechnic for [public] displays as allowed under section 132D-16 more than once a month, the licensee may import or store, if necessary, sufficient aerial [common fireworks, special] devices, display fireworks, or [both,] articles pyrotechnic for a six-month inventory."

SECTION 10. Section 132D-8.6, Hawaii Revised Statutes, is amended to read as follows:

"[[]§132D-8.6 Requirements of licensee.[]] (a) Any person who has obtained a license under section 132D-7 and ships fireworks or articles pyrotechnic into the State shall:

(1) Clearly designate the types of fireworks or articles pyrotechnic in each shipment on the bill of lading or shipping manifest with specificity;

(2) Declare on the bill of lading or shipping manifest the gross weight of aerial [common fireworks, non-aerial common] devices, consumer fireworks, [and special] display fireworks, and articles pyrotechnic to be imported in each shipment and the location of the storage facility, if applicable, in which the fireworks are to be stored;

(3) Prior to shipment and when booking each shipment of fireworks[,] or articles pyrotechnic, notify the appropriate county official as determined by the county regarding whether the shipment will be distributed from:

(A) Pier to pier;

(B) Pier to warehouse or storage facility; or

(C) Pier to redistribution; and

(4) At the time shipping is booked, the importer or consignee shall notify the appropriate county official as determined by the county in writing of the expected shipment's landing date.

(b) The fire department of a county, in which a shipment of fireworks or articles pyrotechnic has landed and becomes subject to the jurisdiction of the fire department, shall be allowed to inspect, if it chooses, any shipment declared on the shipping manifest as fireworks[.] or articles pyrotechnic.

(c) The facility in which fireworks or articles pyrotechnic are to be stored [must:] shall:

(1) Have received approval fifteen days prior to the shipment's arrival from the appropriate county fire department; and

(2) Meet all state and county fire and safety codes.

(d) Any fireworks or articles pyrotechnic landed in the State shall be subject to seizure and forfeiture if:

(1) The importer or consignee does not have in the importer's or consignee's possession a valid license to import fireworks or articles pyrotechnic under section 132D-7;

(2) The consignee does not have a valid license to store fireworks or articles pyrotechnic under section 132D 7; or

(3) The fireworks or articles pyrotechnic have not been declared or have been misdeclared in violation of [[]subsection[]] (a).

(e) No person holding a retailer license to sell [non-aerial common] consumer fireworks shall be allowed to sell [non-aerial common] consumer fireworks commonly known as firecrackers in a packet size larger than 5,000 individual units. Any person violating this subsection shall be guilty of a misdemeanor.

(f) Any person violating subsections (a), (c), or (d) shall be subject to the following for shipments of fireworks or articles pyrotechnic of:

(1) Twenty-five pounds or less gross weight shall be a petty misdemeanor;

(2) Over twenty-five pounds to three hundred pounds gross weight shall be a misdemeanor;

(3) Over three hundred pounds to ten thousand pounds gross weight shall be a class C felony; and

(4) More than ten thousand pounds gross weight shall be a class B felony."

SECTION 11. Section 132D-9, Hawaii Revised Statutes, is amended to read as follows:

"§132D-9 Application for permit. The permit required under section 132D-10 or 132D-16 shall be issued by the county and be nontransferable. The county shall issue all permits for which complete applications have been submitted and which contain only correct information. The permit shall specify the date of issuance or effect and the date of expiration but in no case for a period to exceed one year. The permit for the purchase of [non-aerial common] consumer fireworks for the purposes of section 132D-3 shall not allow purchase for more than one event as set forth in section 132D-3. The application shall be made on a form setting forth the dates for which the permit shall be valid, the location where the permitted activity is to occur, and the name of the proprietor or, if a partnership, the name of the partnership and the names of all partners or, if a corporation, the name of the corporation and the names of its officers. The permit application may be denied if the proposed use of fireworks or articles pyrotechnic presents a substantial inconvenience to the public or presents an unreasonable fire or safety hazard. Any permit issued pursuant to this chapter shall be prominently displayed in public view at the site."

SECTION 12. Section 132D-10, Hawaii Revised Statutes, is amended to read as follows:

"§132D-10 Permits. A permit shall be required for the purchase and use of:

(1) Any [non-aerial common] consumer fireworks commonly known as firecrackers upon payment of a fee of $25; and

(2) Any aerial [common fireworks and any special] devices, display fireworks, or articles pyrotechnic for the purposes of section 132D-16[.] upon payment of a fee of $110."

SECTION 13. Section 132D-11, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The fee for the license required under section 132D-7 shall be $3,000 for importers, $2,000 for each wholesaler's site, $1,000 for each storage site, and $500 for each retailer's site[, and $110 for permits for public display under section 132D-16] for each year or fraction of a year in which the licensee plans to conduct business and shall be payable to the county. The license fees shall be used solely by each county fire department to pay for the salary of an auditor of fireworks and article pyrotechnic records[.] and all expenses incurred to fulfill the duties required, including but not limited to, the inspection of inventory and storage facilities, maintenance of required records, and the training of the auditor. The auditor shall monitor strict inventory and recordkeeping requirements to ensure that sales of fireworks or articles pyrotechnic are made only to license or permit holders under this chapter. The county shall provide an exemption from the fees under this section to nonprofit community groups for importation and storage of fireworks or articles pyrotechnic for displays once a year."

SECTION 14. Section 132D-12, Hawaii Revised Statutes, is amended to read as follows:

"[[]§132D-12[]] Sale to minors. It shall be unlawful for any person to offer for sale, sell, or give any fireworks or articles pyrotechnic to minors, and for any minor to possess, purchase, or set off, ignite, or otherwise cause to explode any fireworks[,] or articles pyrotechnic, except as provided in section 132D-13."

SECTION 15. Section 132D-13, Hawaii Revised Statutes, is amended to read as follows:

"[[]§132D-13[]] Liability of parents or guardians. The parents, guardian, and other persons having the custody or control of any minor, who knowingly permit the minor to possess, purchase, or set off, ignite, or otherwise cause to explode any fireworks[,] or articles pyrotechnic, shall be deemed to be in violation of this chapter and shall be subject to the penalties thereunder, except that the parents or guardian may allow the minor to use consumer fireworks while under the immediate supervision and control of the parent or guardian, or under the supervision and control of another adult."

SECTION 16. Section 132D-14, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Any person:

(1) Importing aerial [common fireworks or special] devices, display fireworks, or articles pyrotechnic without having a valid license under section 132D-7 shall be guilty of a class C felony;

(2) Purchasing, possessing, setting off, igniting, or discharging aerial [common fireworks or special] devices, display fireworks, or articles pyrotechnic without a valid permit under sections 132D-10 and 132D-16, or storing, selling, or possessing aerial [common fireworks or special] devices, display fireworks, or articles pyrotechnic without a valid license under section 132D-7:

(A) If the total weight of the aerial [common fireworks or special] devices, display fireworks, or articles pyrotechnic, is twenty-five pounds or more, shall be guilty of a class C felony; or

(B) If the total weight of the aerial [common fireworks or special] devices, display fireworks, or articles pyrotechnic, is less than twenty-five pounds, shall be guilty of a misdemeanor.

(3) Who transfers or sells aerial [common fireworks or special] devices, display fireworks, or articles pyrotechnic to a person who does not have a valid permit under sections 132D-10 and 132D-16, shall be guilty of a class C felony; and

(4) Who removes or extracts the pyrotechnic contents from any fireworks or articles pyrotechnic and uses the contents to construct fireworks, articles pyrotechnic, or a fireworks or articles pyrotechnic related device shall be guilty of a misdemeanor."

SECTION 17. Section 132D-16, Hawaii Revised Statutes, is amended to read as follows:

"§132D-16 Permit for [public] display. (a) Any person desiring to set off, ignite, or discharge aerial [common fireworks, special] devices, display fireworks, or [both,] articles pyrotechnic for a [public] display shall apply to, and obtain a permit as required by section 132D-10, from the county not less than twenty days before the date of the display.

(b) The application shall state, among other things:

(1) The name, age, and address of the applicant;

(2) The name, age, and address of the person who will operate the display, and verification that the person is a licensed pyrotechnic operator;

(3) The time, date, and place of the display;

(4) The type and quantity of aerial [common fireworks, special fireworks,] devices, display fireworks, articles pyrotechnic, or both, to be displayed; and

(5) The purpose or occasion for which the display is to be presented.

(c) No permit shall be issued under this section unless the applicant presents, at the applicant's option, either:

(1) A written certificate of an insurance carrier, which has been issued to or for the benefit of the applicant, or a policy providing for the payment of damages in the amount of not less than $5,000 for injury to, or death of, any one person, and subject to the foregoing limitation for one person; in the amount of not less than $10,000 for injury to, or death of, two or more persons; and in the amount of not less than $5,000 for damage to property, caused by reason of the authorized display and arising from any tortious acts or negligence of the permittee, the permittee's agents, employees, or subcontractors. The certificate shall state that the policy is in full force and effect and will continue to be in full force and effect for not less than ten days after the date of the [public] display; or

(2) The bond of a surety company duly authorized to transact business within the State, or a bond with not less than two individual sureties who together have assets in the State equal in value to not less than twice the amount of the bond, or a deposit of cash, in the amount of not less than $10,000 conditioned upon the payment of all damages that may be caused to any person or property by reason of the authorized display and arising from any tortious acts or negligence of the permittee, the permittee's agents, employees, or subcontractors. The security shall continue to be in full force and effect for not less than ten days after the date of the [public] display.

The county may require coverage in amounts greater than the minimum amounts set forth in paragraph (1) or (2) if deemed necessary or desirable in consideration of such factors as the location and scale of the display, the type of aerial [common fireworks, special] devices, display fireworks, or [both,] articles pyrotechnic to be used, and the number of spectators expected.

(d) The county, pursuant to duly adopted rules, shall issue the permit after being satisfied that the requirements of subsection (c) have been met, the display will be handled by a pyrotechnic operator duly licensed by the State, the display will not be hazardous to property, and the display will not endanger human life. The permit shall authorize the holder to display aerial [common fireworks, special] devices, display fireworks, or [both,] articles pyrotechnic, only at the place and during the time set forth therein, and to acquire and possess the specified aerial [common fireworks, special] devices, display fireworks, or [both,] articles pyrotechnic, between the date of the issuance of the permit and the time during which the display of those aerial [common fireworks, special] devices, display fireworks, or [both,] articles pyrotechnic is authorized."

SECTION 18. Section 132D-17, Hawaii Revised Statutes, is amended to read as follows:

"§132D-17 Inconsistent county ordinances, rules. Notwithstanding any other law to the contrary, no county shall enact ordinances or adopt any rules regulating fireworks[,] or articles pyrotechnic except as required in this chapter, that is inconsistent with or more restrictive than, the provisions of this chapter. Any ordinances and rules regulating fireworks or articles pyrotechnic that were enacted or adopted by a county before March 31, 1995, except those provisions which are not inconsistent with, or more restrictive than those of this chapter, are declared void."

SECTION 19. Section 132D-21, Hawaii Revised Statutes, is amended to read as follows:

"[[]§132D-21[]] Health care facilities; report of fireworks and articles pyrotechnic incidents. Health care facilities in this State shall report all incidents of serious injuries and fatalities caused by legal and illegal fireworks or articles pyrotechnic to the department of health and the police department of the county in which the person was attended or treated. All reports shall be in writing or in the manner specified by the department of health.

As used in this section, "health care facilities" includes any outpatient clinic, emergency room, or doctor's office, private or public, whether organized for profit or not, used, operated, or designed to provide medical diagnosis, treatment, nursing, rehabilitative, or preventive care to any person or persons. The term includes but is not limited to health care facilities that are commonly referred to as hospitals, extended care and rehabilitation centers, nursing homes, skilled nursing facilities, intermediate care facilities, hospices for the terminally ill that require licensure or certification by the department of health, kidney disease treatment centers including freestanding hemodialysis units, outpatient clinics, organized ambulatory health care facilities, emergency care facilities and centers, home health agencies, health maintenance organizations, and others providing similarly organized services regardless of nomenclature."

SECTION 20. Section 132D-2, Hawaii Revised Statutes, is amended by repealing the definitions of "aerial common fireworks" and "non-aerial common fireworks".

[""Aerial common fireworks" means any firework, classified as common fireworks by the United States Bureau of Explosives or contained in the regulations of the United States Department of Transportation and designated as UN 0336 1.4G, which produces an audible or visible effect and which is designed to rise into the air and explode or detonate in the air or to fly about above the ground and which is prohibited for use by any person who does not have a permit for public display issued by a county under section 132D-16. "Aerial common fireworks" include firework items commonly known as bottle rockets, sky rockets, missile-type rockets, helicopters, torpedoes, daygo bombs, roman candles, flying pigs, and jumping jacks, which move about the ground farther than inside a circle with a radius of twelve feet as measured from the point where the item was placed and ignited, aerial shells, and mines.

"Non-aerial common fireworks" means any firework, classified as common fireworks by the United States Bureau of Explosives or contained in the regulations of the United States Department of Transportation and designated as UN 0336 1.4G, which produces an audible or visible effect and which is designed to remain on or near the ground and which, while stationary or spinning rapidly on or near the ground, emits smoke, a shower of colored sparks, whistling effects, flitter sparks or balls of colored sparks and combination items which contain one or more of these effects. "Non-aerial common fireworks" include firework items commonly known as firecrackers which are single paper cylinders not exceeding one and one-half inches in length excluding the fuse and one quarter of an inch in diameter containing a charge of not more than fifty milligrams of pyrotechnic composition, snakes, sparklers, fountains, and cylindrical or cone fountains which emit effects up to a height not greater than twelve feet above the ground, illuminating torches, bamboo canons, whistles, toy smoke devices, wheels, and ground spinners which when ignited remain within a circle with a radius of twelve feet as measured from the point where the item was placed and ignited, novelty or trick items, combination items, and other fireworks of like construction which are designed to produce the same or similar effects."]

SECTION 21. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 22. This Act shall take effect on August 1, 2006.

INTRODUCED BY:

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