Relates to explosives

Amends Section 450 to permit members of duly constituted police and firefighters to take possession of explosives without a license while in the performance of their official duties in order to remove the explosives from an unsafe location.

Amends Section 450 to exempt persons holding current federal pyrotechnics or explosives license or permit issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives.

Amends Section 451 to add definitions for explosives dealer manufacturer; low explosives dealer manufacturer; explosives handler license; own and possess explosives license; own and possess low explosives license; high explosives; low explosives; and pyrotechnics. Defines display fireworks, public display of fireworks, and private display of fireworks.

Amends Section 453 to provide that explosives that are not stored in a magazine will be deemed to present an imminent hazard and are subject to seizure and destruction under Section 460.5. Amends Section 453 to exempt persons and businesses holding current federal pyrotechnics or explosives license or permit issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives, and such materials are stored in an appropriate magazine as specified, approved and inspected by the permitting authority. Harmonizes state magazine requirements with federal safety and security requirements.

Amends Section 455 to provide that no individual shall access the contents of a magazine unless they have a license or are under the direct supervision of a license holder. It provides for two exceptions employees of retail establishments where black and/or smokeless powder is sold will not be required to have a license where a responsible employee, manager or owner has a valid license. In addition, employees of an explosive manufacturer, while on the grounds of a manufacturing facility where the owner has a current license, will not be required to have a license while working in the manufacturing process.

Adds a new Section 457, which requires that if a magazine is moved from the location for which it was certified by the Commissioner and is to be in that new location for more than 24 hours, the Commissioner must be notified no later than one business day prior to the move.

Amends Section 458 to more clearly define own and possess explosive license and explosive dealer manufacturer license; adds pyrotechnic dealer manufacturer license, low explosive dealer manufacturer license, own and possess low explosive license and explosive handler's license; sets the license period to three years; prescribes the application process and required fees; provides that the required fingerprint check also be done through the Federal Bureau of Investigation; requires that the chief elected official, when notified by the department of the issuance of a license or certificate for

their municipality, shall provide such information to the fire, police and emergency medical services of the municipality.

Amends Section 459 with regard to denial and revocation of licenses or certificates.

Amends Section 463 to provide that appeals of an order of the commissioner shall be commenced pursuant to article seventy-eight of the Civil Practice Law and Rules and shall be commenced in the appellate division of the Supreme Court.

Amends Section 464 to provide for civil penalties for violation of the article.

Also makes technical amendments to the following sections: 454, 456, 460, 461, and 462.

Existing law

Article 16 provides for the regulation of explosive material and the requirements for licenses and certificates for possession of such material and the penalty for violating the article.

Justification

This article was last amended in 1989, and some sections have not been amended since 1949. It is important to recognize the significant changes that have taken place in the explosive industry and, with regard to domestic safety and security, in federal regulation as a result of the 2003 implementation of the federal Safe Explosives Act of 2002. Therefore it is imperative at this time that the current state regulatory framework affecting the explosives industry be revised to reflect the differences between high and low explosives manufacture and use and to harmonize state explosives industry regulation with current federal regulatory oversight.

Following the events of 9/11, and in accordance with Congressionally-mandated reevaluation of federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) licensing directives, the Bureau now requires full licensing and reporting for intrastate possession and use of explosive materials. These new requirements became effective with the passage of the Safe Explosives Act of 2002, which amends Title XI of the Organized Crime Control Act of 1970. The new law constitutes a major policy revision with respect to previous federal regulation of only interstate activities in this area. Prior to implementation of the Safe Explosives Act, a federal permit to purchase explosive materials was necessary if a person wished to transport, ship, or receive explosives in interstate commerce. A permit, however, was not necessary for persons acquiring or using explosives within their own State of residence. The new federal legislation, which took effect on May 24, 2003, now requires that any person who wishes to transport, ship, cause to be transported, or receive explosive materials in either interstate or intrastate commerce must first obtain a federal permit issued by ATF.

The new federal legislation also requires all applicants for explosives licenses or permits, and their employees, if any, submit photographs and fingerprints of responsible persons to ATF for the purpose of performing background checks. Additionally a person receiving explosive material in interstate or intrastate commerce will have to undergo a background check conducted by ATF.

Under the new federal regulations many of the existing State of New York licensing provisions have become duplicative of existing federal requirements. State licensing can be a significant burden on pyrotechnic display businesses and professional display subcontractors operating in the State. Elimination of duplicative State pyrotechnic licensing removes this burden from businesses operating in New York State, in turn promoting business growth and employment. Federal explosives licensing now fully encompasses licensee qualification and storage safety issues and the deletion of State pyrotechnic regulation will have no appreciable impact on industry or individuals' safety.

The State DOL licensing scheme is also deficient with regard to low explosive use, such as black powder. Under the current state licensing structure, anyone who has a state Own and Possess license can purchase any type of explosives that they wish. For example, an individual can represent himself to be a gun dealer who wishes to sell black powder in his shop. Once that individual has a license he is free to buy and sell dynamite or any other type of high or low explosive desired. This change would restrict the gunshop owner to only purchase low explosives. By providing for differing classes of license, persons will be able to engage in the businesses they have historically operated, while recognizing that there is a difference between low and high explosives. In addition, by requiring that anyone that handles or transports explosives for their employer to have a license, the department will be required to perform a background check and be assured that the individuals who are handling or transporting such material do not have a criminal background.

Legislative history

S.4816 in 2006-07, Senate Labor Committee S.7283 in 2008, Senate Rules Committee

Fiscal implications

There may be some increase in fees collected due to changes in the Section 458 fee structure. The significant costs associated with duplicating federal oversight for low explosives users will be eliminated.

Effective date

This act shall take effect on the one hundred eightieth day after it shall have become a law, however, all licenses and certificates issued pursuant to article 16 of this chapter prior to the effective date of this act shall remain in full force until such licenses and certificates expire.