CHAPTER 498

FORMERLY SENATE SUBSTITUTE

NO. 1 FOR SENATE BILL

NO. 375

AN ACT TO AMEND CHAPTER 71, TITLE 16, AND CHAPTER 43, TITLE 21, OF THE DELAWARE CODE, RELATING TO THE SALE, PURCHASE, RECEIPT, POSSESSION, TRANSPORTATION, USE, SAFETY AND CONTROL OF EXPLOSIVE MATERIALS.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Amend Title 16, Chapter 71, of the Delaware Code, by striking Chapter 71 in its entirety and substituting in lieu thereof:

CHAPTER 71.

SALE, PURCHASE, RECEIPT, POSSSESSION,

TRANSPORTATION, USE, SAFETY AND CONTROL

OF EXPLOSIVE MATERIALS

§ 7101. Scope

This Chapter is intended to supplement the requirements of any Federal Laws and Regulations promulgated by any Federal Department or Agency. This Chapter shall apply to the sale, purchase, possession, receipt, transportation and use of explosive material as provided herein, but shall not apply to:

(a) explosive materials while in the course of transportation via railroad, water, highway or air when the explosive materials are moving under the jurisdiction of, and in conformity with, regulations adopted by any Federal Department or Agency.

(b) the laboratories of schools, colleges and similar institutions when confined to the purpose of instruction or research, or to explosive materials in the forms prescribed by the official United States Pharmacopeia or the National Formulary, and used in medicines and medicinal agents.

(c) the normal and emergency operations of any government, including all departments, agencies, and divisions thereof, provided they are acting in their official capacity and in the proper performance of their duties or functions.

(d) explosive materials for delivery to any government or any departments, agencies, and divisions thereof.

(e) pyrotechnics commonly known as fireworks, including signaling devices such as flares, fuses and torpedoes.

(f) small arms ammunition and components therefor, which are subject to the Gun Control Act of 1968 (Title 18, Chapter 44, U.S.C.) and regulations promulgated thereunder.

(g) gasoline, fertilizers and propellant-actuated power devices or tools.

(h) any type of black powder in quantities of less than five (5) pounds.

§ 7102. Definitions

As used in this Chapter:

(a) "Person" means any individual, corporation, company, association, firm, partnership, society or joint stock company.

(b) "Explosive materials" means explosives, blasting agents and detonators as follows:

(i) "Explosives" means any chemical compound mixture, or device, the primary or common purpose of which is to function by explosion; the term includes, but is not limited to, dynamite and other high explosives, black powder, pellet powder, initiating explosives, detonators, safety fuses, squibs, detonating cord, igniter cord, igniters, and those materials included in the list published annually in the Federal Register by the Secretary of the Treasury pursuant to the Organized Crime Control Act of 1970, Title 18, U.S.C., Section 841.

defined as an explosive: Provided, That the finished product, as mixed for use or shipment, cannot be detonated by means of a numbered 8 test blasting cap when unconfined.

(iii) "Detonator" means any device containing a detonating charge that is used for initiating detonation in an explosive; the term includes, but is not limited to, electric blasting caps of instantaneous and delay types, blasting caps for use with safety fuses and detonating — cord delay connection.

(c) "Crime punishable by imprisonment for a term exceeding one year" shall not mean (i) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices or (ii) any State offense (other than one involving a firearm or explosive material) classified by the laws of any State as a misdemeanor and punishable by a term of imprisonment of two years or less.

() "Issuing authorities" shall mean the State Fire Marshal and such local fire marshals as, and to the extent, the State Fire Marshal shall so designate.

(a) "Fugitive from justice" shall mean any person who has fled from the jurisdiction of any court of record to avoid prosecution for any crime or to avoid giving testimony in any criminal proceeding. The term shall also include any person who has been convicted of any crime and has fled to avoid imprisonment.

(b) "Propellant-actuated power devices or tools" shall mean any tool or special mechanized device or gas generator system which is actuated by smokeless propellant or which releases and directs work through a smokeless propellant charge. It does not include explosive-actuated devices.

(c) "Explosive-actuated devices" shall mean any tool or special mechanized device which is actuated by explosives, other than smokeless propellants.

(d) "Distribute" shall mean to issue, give, transfer, or otherwise dispose of.

(a) Loading gunpowder into railroad cars near passenger tracks; penalty.

(i) No person shall load explosive materials into cars on any railroad in this State, within 100 yards of the bed of the regular track used in carrying passengers.

(ii) Whoever engages or participants in any way in loading or putting explosive materials into cars standing within 100 yards of the regular bed of any railroad engaged in carrying passengers in this State, shall be fined $1,000 or imprisoned for 6 months, or both.

(b) Delivering explosives to warehouseman or carrier without disclosure and marking; penalty.

Whoever, within the limits of this State, delivers or causes to be delivered to any warehouseman for storage, or delivers or causes to be delivered to any carrier, whether by land or water, for transportation, any keg, can, or other package known by such person to contain explosive materials without first disclosing to the warehouseman or carrier, his or its proper agents or servants, the character of the contents of such keg, can, or package, and without also having plainly marked or stamped on every such keg, can, or package the true nature of the contents thereof, shall, for each offense, be fined not more than $1,000 or imprisoned not more than 6 months, or both.

(c) False representation or false marking of package containing explosive; penalty.

Whoever, within the limits of this State, delivers or causes to be delivered to any warehouseman for storage, or delivers or causes to be delivered to any carrier, whether by land or water, for transportation, any keg, can, or package known by such person to contain explosive materials which keg, can or package is falsely marked as to its contents, or whoever, at the time of such delivery, makes a false and fraudulent statement as to the character of the contents of any such keg, can, or package, to any such warehouseman or carrier, his or its proper agents or servants, whereby such warehouseman or carrier, his or its proper agents or

servants, are deceived and misled as to the explosive and dangerous qualities of the contents of such keg, can, or package, shall, for each offense, be fined not more than $2,000 or imprisoned not more than 1 year, or both.

§ 7104. Purchase, receipt and possession

(a) License — It shall be unlawful for any person to purchase, receive or possess explosive materials in the State of Delaware without obtaining a license from the issuing authorities.

(b) Federal License or Permit — Any person who possesses a license or permit under Title XI of the Organized Crime Control Act (18 U.S.C., Chapter 40) properly covering the activities of such person shall not be required to obtain a license under this Section.

§ 7105. Sale

No person shall sell or distribute explosive materials to any person without first obtaining a copy of the license which authorizes the distributee to purchase, receive or possess explosive materials as provided in this Chapter; Provided that such person shall not be required to again obtain a copy of said license during the effective term shown on said license.

§ 7106. Licensed blasters

(a) License — It shall be unlawful for any person to use explosive materials unless such person or, if such person is a business entity, an employee of such person, using such explosive materials, possesses a blaster's license, issued by the issuing authorities having jurisdiction over the locality in which such materials are used. The blaster's license must conform to the class and use as provided in §7106(e) and be carried on the person of each such individual during the use of the explosive materials.

(b) Use — Use of explosive materials shall include all applications of explosives for any purpose whatsoever, unless specifically exempted by § 7106(c).

(c) Use Does Not Include — For purposes of this part, use does not include any type of commercial manufacturing or

research conduct in laboratories of commercial or educational institutions.

(d) Qualifications — Blaster's licenses will be issued only to a natural person and shall bear his name, address and photograph. In addition to the qualifications specified in § 7107 hereof, such person must satisfy each of the following qualifications:

(i) Present evidence of training, knowledge and experience in the transporting, storing, handling, and use of explosive materials.

() Be able to understand and give written and oral orders.

(i) Be knowledgeable of Federal, State and local laws and regulations pertaining to explosive materials.

(ii) Be able to pass a qualifying written or oral examination as required by the issuing authorities.

(iii) Be physically and mentally fit for the work required.

(iv) Such other requirements as the issuing authorities are hereby authorized to prescribe by regulations.

(e) Classes of License — Blaster's license shall be issued by the issuing authorities and shall include the following classes of licenses:

Class Category Description

A Unlimited All types of blasting

B General Above Grounds All phases of blasting operation

in quarries, open pit mines, above ground construction

C General All phases of blasting operations, in

Underground underground mines, shafts, tunnels

and drifts.

D Demolition All phases of blasting in demolition

projects

E Seismic All phases of blasting in seismic

Prospecting prospecting.

F Agriculture All phases of blasting in

agriculture but limited to not more than 50 lbs. per blast

G Special Special blasting as described on

the permit.

§ 7107. Administration

(a) Application — Application for license hereunder shall be made to the issuing authorities having jurisdiction over the locality for which license is requested on forms and as prescribed in regulations issued by such issuing authorities.

(b) License Fees — License fees shall be paid at the time of application in the amount of $10.00.

(c) Qualifications — No issuing authorities shall issue any license to any person unless:

(i) The applicant is at least 21 years of age, or if a business entity, properly qualified to do business in the State of Delaware.

() The applicant has not been convicted of a willful violation of any provisions of this Chapter.

(i) The applicant has not knowingly withheld information or has not made any false or fictitious statement intended or likely to deceive, in connection with the application.

(ii) The applicant has certified in writing familiarity and understanding of all published Federal, State and local laws relating to explosives at the location of the applicant's activities.

(iii) The applicant has not been convicted in any court of a crime punishable by imprisonment for a term exceeding one (1) year.

(iv) The applicant is not a fugitive from justice.

(vii) The applicant is not an unlawful user or addicted to marijuana (as defined in Section 4761 of the Internal Revenue Code of 1954 (26 U.S.C. 4761) or any depressant or stimulant drug (as defined in Section 201(2) of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. 321(2), or narcotic drug (as defined in Section 4731(a) of the Internal Revenue Code of 1954 (26 U.S.C. 4731(a).

(d) Posting and Possession of Licenses — Licenses issued under the provisions of this Chapter except as otherwise provided with respect to blaster's licenses, shall be kept posted on premises or on the person of the licensee and be available for inspection.

(e) Licensed Locations and Activities — Each license issued under the provisions of this Chapter shall specify the license, the licensed activity, its effective date and its expiration date.

(f) Regulations and Forms — The administration of this Chapter shall be vested in the issuing authorities who are authorized to:

(i) Prescribe such rules and regulations as are deemed reasonably necessary to carry out the provisions of this Chapter. The issuing authorities shall give reasonable public notice, and afford to interested parties opportunity for hearing, prior to prescribing such regulations.

(ii) Prescribe forms required for the administration of this Chapter.

(g) Right of Inspection and Disclosure — The issuing authorities, or their designees, may enter during business hours the premises (including places of storage) of any licensee, for the purpose of inspecting or examining (a) any records or documents kept by such licensee, and (b) any explosive materials kept or stored by such licensee. Upon the request of any Federal Agency, the issuing authorities shall make available any information which it may obtain by reason of the provisions of this Section with respect to the identification of persons within the State of Delaware, who have purchased or received explosive materials, together with a description of such explosive materials.

(h) Denial or Revocation of License — A license under this

Chapter may be denied or revoked for failure to comply with or satisfy the requirements of any provision of this Chapter and for any of the following reasons:

(i) Non-compliance with any order of the applicable issuing authorities.

(ii) Proof that the applicant or licensee has been convicted of a crime punishable by imprisonment for more than one (1) year.

() Proof that the applicant or licensee advocates, or knowingly belongs to any organization or group which advocates violent overthrow or violent action against any Federal, State or local government, or any individuals therein.

(i) Proof that the applicant or licensee suffers from a mental or physical defect which makes him unfit for the work required.

(ii) Violation by the applicant or licensee of any provisions of any law or regulation relating to explosive materials; or proof that false information was given or misrepresentation made to obtain the license.

(iii) Failure by the applicant or licensee to advise the issuing authorities of any change in a material fact supplied in the application.

In any case, where the issuing authorities denies or revokes a license, it promptly will notify the applicant or licensee of the basis for the revocation or denial and afford the applicant or licensee an opportunity for a hearing in the manner prescribed by the regulations of the issuing authorities.

(i) Renewal — Licenses issued under provisions of this Chapter shall be effective for not more than two (2) years and may be renewed as the issuing authorities may prescribe by regulations.

(j) Emergency Variations — Issuing authorities may approve variations from the requirements of this part when they find that an emergency exists and that the proposed variations from the

specific requirements (a) are necessary, and (b) will not hinder the effective administration of this Chapter.

§ 7108. Authority to purchase in continguous states

Any person who is a resident of the State of Delaware, and who uses explosive materials in the conduct of business or occupation may lawfully purchase explosive materials from a seller located or residing in a state contiguous to the State of Delaware, 'Provided such person is properly licensed under this Chapter.

§ 7109. Records

(a) Records Required — It shall be unlawful for any person willfully to purchase, possess, receive, sell or distribute explosive materials in the State of Delaware without keeping records as specified in this Section.

(b) Records — Records of purchases, possession, and receipts of explosive materials shall be maintained by the persons purchasing, possessing and receiving the explosive materials and shall include the date of the transaction, the name, address and license or permit number of the person from whom received, the name of the manufacturer and importer (if any), the manufacturer's marks of identification (if any), and the quantity and description of explosive materials. With respect to explosive materials sold or distributed, the seller or distributor shall record the name, address, and license or permit number of the distributee, the date of transaction, the name of the manufacturer and importer (if any), the manufacturer's marks of identification (if any), and the quantity and description of the explosive materials.

(c) False entry — It shall be unlawful for any licensee or permittee knowingly to make any false entry in any record which he is required to keep pursuant to this Section or regulations promulgated under § 7107 (f) of this Chapter.

(d) Record Retention — Any record required by this Chapter or regulations promulgated under its provisions shall be retained by the licensee or permitted for not less than five years from the date of the transaction recorded.

§ 7110. Safety

The issuing authorities are authorized to issue such safety regulations as are deemed by the issuing authorities to be necessary in their respective jurisdiction.

§ 7111. Transportation

It shall be unlawful for any person to transport explosive materials in violation of the regulations relating to the transportation of explosive materials. Issuing authorities are authorized to issue regulations covering the transportation of explosive materials in their areas of jurisdiction. Compliance with applicable regulations of the United States Department of Transportation issued pursuant to Title 18, Sections 831 through 835 of the United States Code, and such other Federal regulations as exist or are adopted from time to time, shall be deemed compliance with this Chapter and the regulations issued hereunder.

§ 7112. Violation and penalty

Any person violating any of the provisions of this Chapter, other than § 7103, or any rules or regulations made thereunder: (a) shall for each offense be guilty of a misdemeanor and punished by a fine of not more than $2,000 or by imprisonment for not more than one (1) year, or by both such fine and imprisonment, and any license issued under this Chapter shall be subject to revocation for such period as the applicable issuing authorities deem appropriate; (b) and, if such violation was committed with the knowledge or intent that any explosive material involved was to be used to kill, injure or intimidate any person or unlawfully to damage any real or personal property, the person committing such violation shall be guilty of a felony and for each offense be fined not more than $10,000, or imprisoned for not more than ten (10) years, or both; (c) and if personal injury results, shall be guilty of a felony and imprisoned for not more than twenty (20) years or fined not more than $20,000, or both; (d) and if death results, shall be guilty of a felony and subject to imprisonment for any term of years or for life.

The Superior Court shall have exclusive jurisdiction of violations of this Chapter.

§ 7113. Limitation on legislation

This Chapter is intended to and shall pre-empt and supersede all existing and future country, town, city or municipal ordinances or regulations respecting the subjects covered by this Chapter.

Section 2. Amend Chapter 43, Title 21 of the Delaware Code, by striking § 4373 in it entirety.

Section 3. This Act shall take effect ninety (90) days after the Governor shall have affixed his signature thereto.

Approved July 7, 1972.