Senate Bill No. 707
(By Senators Bailey, Unger, Stollings, Love and White)
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[Introduced February 18, 2008; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §11-12-87; to amend
and reenact §29-3-23 and §29-3-24 of said code; and to amend
and reenact §61-3E-1 of said code, all relating to legalizing
and regulating the sale and use of fireworks; imposing a ten-
percent fee for the sale of fireworks; and using the proceeds
of said fee to fund pensions for qualified volunteer
firefighters.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §11-12-87; that
§29-3-23 and §29-3-24 of said code be amended and reenacted; and
that §61-3E-1 of said code be amended and reenacted, all to read as
follows:
CHAPTER 11. TAXATION.
ARTICLE 12. BUSINESS REGISTRATION TAX.
§11-12-87. Fireworks registration fee.
The Tax Commissioner shall establish an annual "Fireworks
Registration Fee" to be charged to all West Virginia licensed
businesses desiring to sell fireworks authorized for sale in
section twenty-three, article three, chapter twenty-nine of this
code. This fee shall run concurrent with the business registration
certificate set forth in section five of this article, and not be
prorated. A business shall pay twenty dollars for each
registration and shall be issued a sticker or card by the Tax
Commissioner to be posted in a conspicuous position at the location
of the business paying the registration fee. This fee shall be
collected for each separate location where fireworks are sold. The
Tax Commissioner may, at his or her discretion, require a separate
certificate which shall be posted as set forth in this section, or
provide that the evidence of compliance with this section may be by
a stamp or language added to the business registration certificate
or by embossing or writing imprinted on the business registration
certificate.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 3. FIRE PREVENTION AND CONTROL ACT.
§29-3-23. "Fireworks" defined; labels required.
(a) The following items are considered fireworks and require
a business registration fee be paid in order to be offered for
sale, as provided in section eighty-seven, article twelve, chapter
eleven of this code:
(1) The term "fireworks" means and includes any combustible or
explosive composition, or any substance or combination of substances, or article prepared for the purpose of producing a
visible or an audible effect by combustion, explosion, deflagration
or detonation and shall include blank cartridges, toy pistols, toy
cannons, toy canes or toy guns in which explosives are used, the
type of unmanned balloons which require fire underneath to propel
the same, firecrackers, torpedoes, skyrockets, roman candles, daygo
bombs or other fireworks of like construction and any fireworks
containing any explosive or flammable compound or any tablets or
other device containing any explosive substance, except that the
term "fireworks" shall not include: device, other than a novelty of
theatrical pyrotechnic article, intended to produce visible and/or
audible effects by combustion, deflagration or detonation.
(2) The term "consumer fireworks" means any fireworks device
in a finished state, exclusive of mere ornamentation, suitable for
use by the public that complies with the construction, performance,
composition and labeling requirements established by the United
States Consumer Products Safety Commission (CPSC) in Title 16
C.F.R. parts 1500 and 1507 and any other limits and requirements
that the CPSC may impose. Consumer fireworks are classified under
the standards of the United Nations as UN0336 and as Fireworks
1.4G. Consumer fireworks include, but are not limited to,
firecrackers, skyrockets, roman candles, mines, shells, and
multiple-tube items.
(3) The term "display fireworks" means fireworks devices in a
finished state, exclusive of mere ornamentation, primarily intended
for commercial displays that are designed to produce visible and/or audible effects by combustion, deflagration or detonation,
including, but not limited to, exhibition display items that exceed
the limits contained in the CPSC standards for consumer fireworks.
Display fireworks are classified under United Nations standards as
UN0335 and Fireworks 1.3G.
(b) The term "fireworks" does not include:
(1) Model rockets and model rocket engines, designed, sold and
used for the purpose of propelling recoverable acro aero models;
and shall not include toy
(2) Toy pistols, toy canes, toy guns or other devices in which
paper or plastic caps manufactured in accordance with the United
States Department of Transportation regulations for packing and
shipping of toy paper or plastic caps are used and toy paper or
plastic caps manufactured as provided therein, the sale and use of
which shall be is permitted at all times. Each package containing
toy paper or plastic caps offered for retail sale shall be labeled
to indicate the maximum explosive content per cap;
(3) Emergency signal flares;
(4) Matches;
(5) Fixed ammunition for firearms;
(6) Ammunition components intended for use in firearms, muzzle
loading cannons and small arms; and
(7) Shells, cartridges and primers for use in firearms, muzzle
loading cannons and small arms.
(c) The following sparklers and novelties shall not be
considered are not fireworks. and They require a business registration fee be paid to be authorized to sell, as provided for
in section eighty-six, article twelve, chapter eleven of this code:
(1) Explosive caps designed to be fired in toy pistols,
provided that the explosive mixture of the caps shall does not
exceed twenty-five hundredths of a grain for each cap.
(2) (1) Snake and glow worms composed of pressed pellets of a
pyrotechnic mixture that produce a large snake-like ash when
burning;
(3) (2) Toy smoke devices consisting of a tube, cone or sphere
containing a pyrotechnic mixture that produces white or colored
smoke;
(4) (3) Trick noisemakers which produce a small report
designed to surprise the user and which include:
(A) A party popper, which is a small plastic or paper item
containing not in excess of twenty-five hundredths of a grain of
explosive mixture. A string protruding from the device is pulled
to activate the device, expelling paper streamers and producing a
small report.
(B) A string popper which is a small tube containing not in
excess of twenty-five hundredths of a grain of explosive mixture
with string protruding from both ends. The strings are pulled to
activate the friction-sensitive mixture, producing a small report.
(C) A snapper, or drop pop which is a small paper wrapped item
containing no more than twenty-five hundredths of a grain of
explosive mixture coated on small bits of sand. When dropped, the
device produces a small report.
(5) Wire (4) Sparklers consisting of a metal wire or wood
stick or dowel coated with nonexplosive pyrotechnic mixture that
produces a shower of sparks upon ignition. These items must may
not exceed one hundred grams of mixture per item.
(6) (5) Other sparkling devices which emit showers of sparks
and sometimes a whistling or crackling effect when burning, do not
detonate or explode, are hand-held or ground-based, and cannot
propel themselves through the air. and contain not more than
seventy-five grams of chemical compound per tube or not more than
a total of two hundred grams if multiple tubes are used: Provided,
That These devices include:
(A) Cylindrical fountain. -- This is comprised of a
cylindrical tube with pyrotechnic composition producing a shower of
colored sparks and/or a whistling effect and/or smoke.
(B) Cone fountain. -- This is a cardboard or heavy paper cone
containing pyrotechnic composition. The effect is the same as that
of a cylindrical fountain.
(C) Illuminating torch. -- Cylindrical tube that produces a
colored flame upon ignition. These may be spike, base or hand
held.
(D) Wheel. -- Pyrotechnic device intended to be attached to a
post or tree by means of a nail or string. These may have one or
more drivers. Upon ignition, the wheel revolves and produces a
shower of color and sparks and, sometimes, a whistling effect.
(E) Ground spinner. -- This is a small devices with
pyrotechnic composition, venting out an orifice, usually on the side of the tube. This is similar in operation to a wheel but
intended to be placed flat on the ground and ignited. A shower of
sparks and color is produced by the rapidly spinning device.
(F) Flitter sparkler. -- This is a narrow paper tube attached
to a stick or wire and is filled with pyrotechnic composition that
produces color and sparks upon ignition. The paper at one end of
the tube is ignited to make the device function.
(d) Sparklers and sparkler sparkling devices as provided for
herein shall in subdivisions four and five, subsection (c) of this
section may not be sold to anyone below the age of sixteen years
old.
§29-3-24. Sale, possession or use of fireworks; permit for public
display.
Except as hereinafter provided, no person, firm,
co-partnership or corporation shall offer for sale, possess, expose
for sale, sell at retail, keep with intent to sell at retail, or
use or explode any fireworks: Provided, That
(a) Consumer fireworks may be legally sold, bought, possessed
and used. A fireworks safety brochure shall be included with each
retail sale of consumer fireworks. A person at least sixteen years
old may set off fireworks under competent adult supervision. Eye
protection is required of anyone under the age of eighteen who
ignites consumer fireworks.
(b) The State Fire Marshal may propose reasonable rules for
legislative approval for the granting of permits for the wholesale
and retail sale and storage of fireworks.
(c) In addition to the state consumer sales tax, a ten per
cent Fireworks Safety Fee shall be added to retail sales of
consumer fireworks and those items identified in subsections (b),
(c) and (d), section twenty-three of this article. The Tax
Commissioner shall establish the appropriate amount to be collected
for fractional dollar sales.
(d)
The proceeds of the fee collected pursuant to this section
shall be deposited by the Tax Commissioner, at least monthly, in a
special revenue account designated as the
"West Virginia Volunteer
Firefighter Length of Service Fund" as established by section
three, article fifteen-b, chapter eight of this code.
(e) The State Fire Marshal may adopt propose reasonable rules
and regulations for legislative approval for the granting of
permits for the supervised public displays of fireworks by
municipalities, fair associations, amusement parks and other
organizations or groups of individuals. The State Fire Marshal
shall have has the authority to charge a fee of ten twenty dollars
to each applicant requesting a license to be a pyrotechnic operator
as set forth in this article. The State Fire Marshal shall charge
a scaled fee for all applications requesting permits to establish
a pyrotechnics display as provided in this section. All fees
required to be paid by the provisions of this section shall be paid
to the State Fire Marshal and thereafter deposited by him into a
special account for the operation of the state Fire Commission.
Such The permits may be granted upon application to said the State
Fire Marshal and after approval of the local police and fire authorities of the community wherein where the display is proposed
to be held as provided herein in this section and the filing of a
bond by the applicant as provided hereinafter in this section.
(f) Every such A fireworks display shall be handled by a
competent operator licensed or certified as to competency by the
State Fire Marshall and shall be of such composition, character,
and so located, discharged or fired as in the opinion of the chief
of the fire department, after proper inspection, and of the chief
of police as to not be hazardous to property or endanger any person
or persons. After such the privilege shall have has been granted,
the sale, possession, use and distribution of fireworks for such
the display shall be lawful for that purpose only. No permit
granted hereunder shall be under this section is transferable.
(g) (1) The governing body or chief executive authority of the
municipality shall require a bond from the licensee in a sum not
less than one thousand dollars conditioned on compliance with the
provisions of this article and the regulations rules of the state
Fire Commission. Provided, That No municipality shall be is
required to file such bond.
(2) Before any permit for a pyrotechnic display shall be is
issued, the person, firm or corporation making the application
therefor shall furnish proof of financial responsibility to satisfy
claims for damages to property or personal injuries arising out of
any act or omission on the part of such the person, firm or
corporation or any agent or employee thereof, in such an amount,
character and form as the State Fire Marshall determines to be necessary for the protection of the public.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3E. OFFENSES INVOLVING EXPLOSIVES.
§61-3E-1. Definitions.
As used in this article, unless the context otherwise
requires:
(a) "Destructive device" means any bomb, grenade, mine,
rocket, missile, pipebomb or similar device containing an
explosive, incendiary, explosive gas or expanding gas which is
designed or so constructed as to explode by such filler and is
capable of causing bodily harm or property damage; any combination
of parts, either designed or intended for use in converting any
device into a destructive device and from which a destructive
device may be readily assembled.
"Destructive device" does not include a firearm as such is
defined in section two, article seven of this chapter
or fireworks
or model rockets and their components as defined in section
twenty-three, article three, chapter twenty-nine of this code.
(b) "Explosive material" means any chemical compound,
mechanical mixture or device that is commonly used or can be used
for the purpose of producing an explosion and which contains any
oxidizing and combustive units or other ingredients in such
proportions, quantities or packaging that an ignition by fire, by
friction, by concussion, by percussion, by detonator or by any part
of the compound or mixture may cause a sudden generation of highly
heated gases. These materials include, but are not limited to, powders for blasting, high or low explosives, blasting materials,
blasting agents, blasting emulsions, blasting fuses other than
electric circuit breakers, detonators, blasting caps and other
detonating agents and black or smokeless powders not manufactured
or used for lawful sporting purposes or fireworks defined in
section twenty-three, article three, chapter twenty-nine of this
code which are not used in violation of this article. Also
included are all explosive materials listed annually by the office
of the State Fire Marshal and published in the State Register, said
publication being hereby mandated.
(c) "Hoax bomb" means any device or object that by its design,
construction, content or characteristics appears to be, or is
represented to be or to contain a destructive device, explosive
material or incendiary device as defined in this section, but is,
in fact, an inoperative facsimile or imitation of such a
destructive device, explosive material or incendiary device.
(d) "Incendiary device" means a container containing gasoline,
kerosene, fuel oil, or derivative thereof, or other flammable or
combustible material, having a wick or other substance or device
which, if set or ignited, is capable of igniting such gasoline,
kerosene, fuel oil, or derivative thereof, or other flammable or
combustible material:
Provided, That no similar device
commercially manufactured and used solely for the purpose of
illumination shall be deemed to be an incendiary device.
(e) "Legal authority" means that right as expressly stated by
statute or law.
(f) "Person" shall mean an individual, corporation, company,
association, firm, partnership, society or joint stock company.
(g) "Storage magazine" is defined to mean any building or
structure, other than an explosives manufacturing building,
approved by the legal authority for the storage of explosive
materials.
NOTE: The purpose of this bill is to legalize and regulate the
selling of fireworks; to impose a special ten per cent fee on the
sale of fireworks; and to use those proceeds for pensions for
qualified volunteer firefighters.
§11-12-87 is new; therefore, strike-throughs and underscoring
have been omitted.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.