Chapter 980 Oregon Laws 1999
Session Law
AN ACT
HB 3190
Relating to explosives;
creating new provisions; amending ORS 480.200, 480.205, 480.210, 480.215,
480.225, 480.230, 480.235, 480.265, 480.270, 480.275, 480.280 and 480.290;
repealing 480.255 and 480.260; limiting expenditures; and declaring an
emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1.
ORS 480.200 is amended to read:
480.200. As used in ORS 480.200 to [480.275 and 480.280 (2)]
480.290 unless the context requires otherwise:
(1) "Certificate of
possession" means a certificate issued under ORS 480.235 by the State Fire
Marshal to applicants who have met the requirements of ORS 480.200 to 480.290.
(2) "Certificate of
registration" means a certificate of registration issued under section 16
of this 1999 Act by the State Fire Marshal for an explosives magazine.
[(1)] (3) "Explosive" means a
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, pellet powder, initiating
explosives, detonators, safety fuses, squibs, detonating cord, igniter cord and
igniters, [that is commonly used or
intended for the purpose of producing a chemical reaction resulting in a
substantially instantaneous release of gas and heat, including but not limited
to dynamite, blasting powder, nitroglycerin, blasting caps and nitro-jelly, but
excluding] but excludes
fireworks, as defined [by] in
ORS 480.110 (1), black powder, smokeless powder, small arms ammunition [and],
small arms ammunition primers and
fertilizer, as defined in ORS 633.310.
[(2) "Fire
marshal" means the State Fire Marshal.]
[(3)] (4) "Issuing authority" means
the State Fire Marshal or an assistant appointed by the State Fire Marshal under ORS 480.280 (2).
(5) "Magazine"
means an approved facility for the storage of explosives.
[(4)] (6) "Small arms ammunition"
means a shotgun, rifle, pistol or revolver cartridge.
[(5)] (7) "Small arms ammunition
primers" means small percussion-sensitive explosive charges encased in a
cup and used to ignite propellant powder.
SECTION 2.
ORS 480.205 is amended to read:
480.205. ORS 480.200 to [480.275,
480.280 (2)] 480.290 and 480.990
(6) do not apply to:
(1) The possession of an explosive by a member of the Armed
Forces of the United States while on active duty and engaged in the performance
of official duties or by a member of a regularly organized [fire or police department of a] public law enforcement agency, public fire department or fire protection
agency while engaged in the performance of official duties.
(2) The possession of an explosive in the course of
transportation by way of railroad, water, highway or air while under the
jurisdiction of, or in conformity with, regulations adopted by the United
States Department of Transportation.
[(3) The possession,
sale, transfer or manufacture of an explosive by a person acting in accordance
with the provisions of any applicable federal law or regulation that provides
substantially the same requirements as the comparable provisions of ORS 480.200
to 480.275 and 480.280 (2).]
SECTION 3.
ORS 480.210 is amended to read:
480.210. (1) [Except as
otherwise provided by ORS 480.255,] A person may not possess [have] an
explosive [in possession on or after
September 9, 1971,] unless:
(a) The person has in immediate possession at all times during
the possession of the explosive a valid certificate of possession issued to the
person under ORS 480.235; or
(b) The person is licensed
by the Bureau of Alcohol, Tobacco and Firearms to be a manufacturer of
explosives, [or] a dealer in explosives
or the authorized agent of such a manufacturer or dealer.
(2) A person in possession of an explosive shall display a
certificate of possession upon the demand of [an] the issuing
authority, a magistrate or a [peace
officer] law enforcement agency,
public fire department or fire protection agency of this state.
(3) It is a defense to a charge under subsection (1) of this
section that the person so charged produce in court:
(a) A certificate described in subsection (1)(a) of this
section that was valid at the time of the arrest of the person; or
(b) Proof that the person is licensed by the Bureau of Alcohol, Tobacco and Firearms to be a
manufacturer [in] of explosives, a dealer in explosives, or the authorized agent of such a
manufacturer or dealer [or a transferee
under ORS 480.255 at the time of arrest].
SECTION 4.
ORS 480.215 is amended to read:
480.215. [(1) Except as
otherwise provided by ORS 480.255,] Possession of an explosive shall not be
transferred unless:
[(a)] (1) The transferee holds a certificate
of possession under ORS 480.235 and the certificate is valid at the time of the
transfer; [or]
[(b)] (2) The transferee is licensed as a manufacturer of
explosives or a dealer in explosives by
the Bureau of Alcohol, Tobacco and Firearms; or
[(c)] (3) The transferee is a consignee of
explosives [which] that have been transported under the
jurisdiction of or in conformity with regulations adopted by the United States
Department of Transportation.
[(2) Notwithstanding ORS
480.255 and subsection (1) of this section, a person shall not knowingly
transfer possession of any explosive to anyone whom the transferor knows lacks
any of those characteristics listed under ORS 480.225.]
SECTION 5.
ORS 480.225 is amended to read:
480.225. (1) A
person is eligible for a certificate of possession under ORS 480.235 if:
[(1)] (a) The person has not been convicted, or found guilty except for insanity under
ORS 161.295, of a misdemeanor [involving
the use or threatened use of force, violence or a dangerous or deadly weapon] involving violence, as defined in ORS
166.470, within the previous four years. A person who has been so convicted
is eligible under this subsection following the expiration of seven years after
the date of final and unconditional discharge from all imprisonment, probation
and parole resulting from the conviction.
[(2)(a)] (b) The person has not been convicted, or found guilty except for insanity under
ORS 161.295, of, and is not under indictment for, any felony.
[(b) Notwithstanding
paragraph (a) of this subsection, a person convicted of a felony not involving
the use or threatened use of force, violence or a dangerous weapon is eligible
under this section following the expiration of 10 years after the date of final
and unconditional discharge from all imprisonment, probation and parole
resulting from the conviction.]
[(3)] (c) The person is not a fugitive from
justice, has no outstanding warrants for
arrest and is not free on any form of pretrial release for any offenses listed
in paragraphs (a) and (b) of this subsection.
[(4)] (d) The person has not been adjudged to
be mentally ill or mentally deficient pursuant to ORS chapter 426 and 430.397
to 430.401 or ORS chapter 427. A person who previously has been so adjudged is
eligible under this subsection if, at the time of application for such a
certificate, the person produces a certified copy of a full discharge from the
proper state hospital. The Mental Health
and Developmental Disability Services Division shall provide the State Fire
Marshal with direct electronic access to the division's database of information
identifying persons meeting the criteria of this section who were committed or subject
to an order under ORS 426.130. The State Fire Marshal and the Mental Health and
Developmental Disability Services Division shall enter into an agreement
describing the access to information under this subsection.
[(5)] (e) The person is at least 21 years of
age.
[(6)] (f) The person does not use a
fictitious name or make a material misrepresentation in application for such a
certificate.
[(7)(a)] (g)(A) The person has not been
convicted of, and is not under indictment for, a criminal offense involving a
controlled substance as defined in ORS 475.005, other than the offense of
driving under the influence of intoxicants.
[(b)] (B) Notwithstanding [paragraph (a) of this subsection] subparagraph (A) of this paragraph, a
person who has had a certificate denied or revoked due to conviction of a
criminal offense involving a controlled substance is eligible under this
section following the expiration of seven years after the date of final and
unconditional discharge from all imprisonment, probation and parole resulting
from the conviction.
(h) The person has been
discharged from the jurisdiction of the juvenile court for more than four years
for an act that, if committed by an adult, would constitute a felony or a
misdemeanor involving violence, as defined in ORS 166.470.
(i) The person is not the
subject of a restraining order that alleges the person's possession of
explosives presents a credible threat to another person.
(j) The person has passed an
examination administered by the State Fire Marshal that assesses the person's
knowledge of safety in the transportation and storage of explosives as required
under federal and state laws and regulations pertaining to explosives. The
State Fire Marshal shall examine each applicant prior to issuance of a
certificate of possession to the applicant. The State Fire Marshal may by rule
establish and collect an examination fee in an amount necessary to cover the
cost of administering the examination.
(k) The person certifies on
the application for a certificate of possession that all explosives in the
person's possession will be used, stored and transported in accordance with
federal, state and local requirements.
(L) The person certifies
that all explosives will be possessed, used, stored and transported in
accordance with federal, state and local requirements.
(2) Subsection (1)(a) and
(b) of this section do not apply to a conviction or indictment that has been
expunged from a person's record under the laws of this state or equivalent laws
of another jurisdiction.
SECTION 6.
ORS 480.230 is amended to read:
480.230. A person desiring a certificate of possession shall
apply [in person, or if such person is
other than an individual, through its authorized representative or agent.] on application forms provided by the
office of the State Fire Marshal. The forms shall be completed in full and
shall include [The applicant shall
provide at the time of such application]:
(1) The applicant's legal
name, [and] current address [and, if the applicant is other than an
individual, the name and address of the individual completing the application
and the individual's relationship to or position with the applicant] and current telephone number;
(2) [If the applicant is
an individual, the individual's age] The
applicant's date of birth;
(3) A statement by the applicant that the applicant is eligible
for a certificate of possession under ORS 480.225;
(4) The number of the
certificate of registration issued under section 16 of this 1999 Act for the
explosives magazine where the applicant intends to store the explosives;
[(4)] (5) Any other information that the
issuing authority may require to readily identify the applicant;
[(5)] (6) A [verification] certification,
signed and dated by the applicant [or the individual completing the application],
that the information contained in the application is true; and
[(6)] (7) A nonrefundable application fee of
[$15] $50 for a three-year certificate [or $7.50 for a 90-day certificate].
SECTION 7.
ORS 480.235 is amended to read:
480.235. (1) A certificate of possession [may not] shall be issued
[before the expiration of seven days] or denied within 45 days after the
date of the application or the conclusion of the investigation conducted by the
issuing authority pursuant to subsection (2) of this section[, whichever occurs first].
(2) The issuing authority shall conduct an [investigate] investigation [the qualifications of the applicant for a certificate of possession] to ensure that the applicant meets the
requirements listed in ORS 480.225 and 480.230. The issuing authority shall
include fingerprinting and photographic identification in the investigation.
The issuing authority may submit the fingerprint cards to the Federal Bureau of
Investigation for the purpose of a nationwide criminal records check.
Unless the issuing authority finds that the applicant is ineligible under ORS
480.225 or 480.230, the authority
shall issue a certificate of possession to the applicant [at the end of the seven-day period or at the conclusion of the
investigation, whichever occurs first].
If the issuing authority finds that the applicant is ineligible under ORS
480.225 or 480.230, the authority shall issue a notification of denial. The
denial shall be subject to the provisions of ORS 480.275.
(3) A [three-year]
certificate of possession is valid for three years from the date of issuance [or until] unless suspended or revoked pursuant to ORS 480.270[, whichever date is earlier. A 90-day
certificate of possession is valid for 90 days from the date of issuance or
until suspended or revoked pursuant to ORS 480.270, whichever date is earlier].
(4) A certificate of possession may not be assigned or
transferred.
(5) The holder of a certificate of possession shall maintain a
record of the type and quantity of all explosives possessed during the
certificate period. The record shall be made available upon demand of the
issuing authority, [or] a
magistrate or a [peace officer] law enforcement agency, public fire
department or fire protection agency of this state.
SECTION 8.
ORS 480.265 is amended to read:
480.265. The loss, theft or unlawful removal of an explosive
from the possession of any person shall be reported by the person [immediately] within 24 hours to [an] the issuing authority [or]
and a [peace officer] law enforcement agency of this state.
The report shall include the type and quantity of the explosive.
SECTION 9.
ORS 480.270 is amended to read:
480.270. (1) [An] The issuing authority may suspend or
revoke a certificate of possession [or a
certificate of registration as a manufacturer of explosives or as a dealer in
explosives] if the issuing authority finds that the person to whom the
certificate of possession was issued
is ineligible for the certificate of
possession under ORS 480.225 or
480.230 or that the person has been convicted of a violation under ORS
480.990 (6).
(2) A certificate of
possession suspended or revoked under subsection (1) of this section shall
be void from the date of the suspension or revocation. The person to whom the
certificate of possession was issued
shall surrender the suspended or revoked certificate of possession to [an] the issuing authority upon the demand
of the issuing authority.
SECTION 10.
ORS 480.275 is amended to read:
480.275. [(1)] An
applicant who has been denied a certificate of possession or a certificate of registration [or a certificate of registration as a manufacturer of explosives or as
a dealer in explosives,] or a person whose certificate of possession or certificate of registration has been suspended or
revoked is entitled to [be represented by
counsel at] a hearing before the issuing authority under ORS 183.310 to
183.550. [At least 20 days before the
date of the hearing the issuing authority shall notify the applicant or
certificate holder of the matters to be considered at the hearing. Within 30
days after the date of the hearing, the issuing authority shall send written notice
of its decision to the applicant or certificate holder.]
[(2) Within 60 days after
the receipt of the written notice of the decision of the issuing authority
under subsection (1) of this section, the applicant or certificate holder may
seek judicial review of the decision under ORS 183.480, 183.490 and 183.550.]
SECTION 11.
ORS 480.280 is amended to read:
480.280. (1) The State Fire Marshal shall administer and
enforce ORS 480.200 to [480.275, 480.280
(2)] 480.290 and 480.990 (6) and
may, in accordance with the applicable provisions of ORS chapter 183.310 to
183.550, adopt rules [and regulations]
considered to be necessary in carrying out ORS 480.200 to [480.275, 480.280 (2)] 480.290
and 480.990 (6). The rules adopted shall
be such as are reasonably necessary for the protection of the public health,
welfare and safety and of persons possessing or storing explosives.
(2) The State Fire Marshal may appoint an individual,
designated as assistant by ORS 476.060 (1), or any other individual to act as
the assistant[,] of the State Fire Marshal in the
administration and enforcement of [this
subsection and] ORS 480.200 to [480.275,]
480.290 and 480.990 (6).
SECTION 12.
ORS 480.290 is amended to read:
480.290. (1) Each person who drives or has charge of a vehicle
transporting explosives must possess a certificate issued pursuant to ORS
480.235 [or 480.255].
(2) Except as provided in subsection (3) of this section, the
driver of a vehicle transporting any quantity of explosives must attend the
vehicle at all times.
(3) The driver of a vehicle transporting explosives may leave
the vehicle unattended only at a designated location that has been approved for
such parking by the State Fire Marshal or by the local government agency that
has responsibility for fire protection.
(4) A vehicle which contains explosives must not be parked
within 300 feet of any bridge, tunnel, dwelling, building or place where people
work, congregate or assemble except for brief periods when the necessities of
operation require the vehicle to be parked and make it impracticable to park
the vehicle in any other place.
(5) As used in this section, a vehicle is "attended"
when the person in charge of the vehicle is on the vehicle, awake and not in a
sleeper berth, or is within 100 feet of the vehicle and has it within
unobstructed field of view.
(6) All vehicles containing explosives shall display
appropriate placards conforming to the requirements of the United States
Department of Transportation.
SECTION 13. ORS 480.280 and 480.290 are added to and
made a part of ORS 480.200 to 480.275.
SECTION 14. Sections 15 and 16 of this 1999 Act are
added to and made a part of ORS 480.200 to 480.275.
SECTION 15. Any applicant for the renewal of an
unexpired certificate of possession issued on or after June 1, 2000, shall not
be required to retake the safety examination described under ORS 480.225 (1)(j)
to obtain the renewal unless the applicant has allowed the certificate to
lapse. All other requirements for the issuance of a certificate shall be met
before a certificate is renewed.
SECTION 16. (1) A person may store explosives only in
an explosives magazine that has been issued a certificate of registration by
the State Fire Marshal.
(2) An application for a
certificate of registration shall be submitted on a form approved by the State
Fire Marshal and shall contain all information required by rule of the State
Fire Marshal, including but not limited to the magazine location and structural
information.
(3) The State Fire Marshal
may establish by rule and collect application and registration fees in an
amount necessary to cover the cost of administering the magazine registration
program.
(4) Except as provided in
subsection (5) of this section, prior to issuing a certificate of registration,
the State Fire Marshal shall inspect the magazine to ensure that the magazine
complies with the rules established by the State Fire Marshal under ORS 480.280.
The State Fire Marshal shall issue a certificate of registration for the
magazine unless the State Fire Marshal finds that the magazine does not comply
with the rules and regulations adopted by the State Fire Marshal. Denial of a
certificate of registration shall be in accordance with subsection (9) of this
section.
(5) The State Fire Marshal
may substitute for its own inspection of the magazine as required under
subsection (4) of this section an inspection completed by the Bureau of
Alcohol, Tobacco, and Firearms. The State Fire Marshal shall establish criteria
for when the Bureau of Alcohol, Tobacco, and Firearms inspection may substitute
for the State Fire Marshal inspection.
(6) A certificate of
registration shall be valid for two years unless suspended or revoked as
provided under subsection (9) of this section.
(7) An application for the
renewal of a certificate of registration shall be accompanied by any
application fee established by the State Fire Marshal. A person who applies to
renew a certificate before the person's current certificate expires does not need
to retake the safety examination described under ORS 480.225 (1)(j). Each
magazine shall be reinspected prior to renewal of the certificate of
registration.
(8) If a magazine required
to be registered under this section is relocated, the person responsible for
the magazine shall notify the State Fire Marshal within 24 hours of the
relocation. Upon receiving notification under this subsection, the State Fire
Marshal shall notify the fire department or fire protection agency having
jurisdiction over the new location.
(9) The State Fire Marshal
may deny, suspend or revoke a certificate of registration if the State Fire
Marshal finds that the magazine is ineligible for a certificate of registration.
If the State Fire Marshal denies, suspends or revokes the certificate of
registration, the issuing authority shall issue a notification of denial,
suspension or revocation, subject to ORS 480.275.
(10) The issuing authority
may revoke the certificate of registration for failure to comply with any
provision of ORS 480.200 to 480.290.
SECTION 17. The State Fire Marshal shall, before June
1, 2000, develop procedures and informational materials necessary for the
implementation of ORS 480.200 to 480.290 and the adoption of any rule
thereunder.
SECTION 18. ORS 480.255 and 480.260 are repealed.
SECTION 19. Notwithstanding any law limiting
expenditures of the Department of State Police for the payment of expenses from
fees, moneys or other revenues, including Miscellaneous Receipts but excluding
lottery funds and federal funds, collected or received by the Department of
State Police for the biennium beginning July 1, 1999, the limitation on
expenditures established by section 2, chapter 231, Oregon Laws 1999 (Enrolled
House Bill 5043), is increased by $102,258 for the purpose of carrying out the
duties imposed upon the department by sections 15, 16 and 17 of this 1999 Act
and the amendments to ORS 480.200, 480.205, 480.210, 480.215, 480.225, 480.230,
480.235, 480.265, 480.270, 480.275, 480.280 and 480.290 by sections 1 to 12 of
this 1999 Act.
SECTION 20. Sections 15 and 16 of this 1999 Act, the
amendments to ORS 480.200, 480.205, 480.210, 480.215, 480.225, 480.230,
480.235, 480.265, 480.270, 480.275, 480.280 and 480.290 by sections 1 to 12 of
this 1999 Act and the repeal of ORS 480.255 and 480.260 by section 18 of this
1999 Act apply to certificates of possession and certificates of registration
issued or renewed on or after June 1, 2000.
SECTION 21. This 1999 Act being necessary for the
immediate preservation of the public peace, health and safety, an emergency is
declared to exist, and this 1999 Act takes effect on its passage.
Approved by the Governor
August 18, 1999
Filed in the office of
Secretary of State August 23, 1999
Effective date August 18,
1999
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