STATE OF WISCONSIN
DEPARTMENT OF SAFETY AND PROFESSIONAL SERVICES
IN THE MATTER OF RULEMAKING PROCEEDINGS BEFORE THE
DEPARTMENT OF SAFETY AND PROFESSIONAL SERVICES
ORDER OF THE DEPARTMENT
ADOPTING RULES
(CLEARINGHOUSE RULE 17-034)
ORDER
An order of the department to repeal SPS 307.43 (2) (Note), 307.44 (4) (d), and 308.10 (Note 1); to renumber and amend SPS 307.31 (2) (b) and 307.41 (1); to amend SPS 307.20 (21), 307.21 and (Note), 307.31 (2) (intro.), (a), and (b) (Note) and (4) (c) 2., 307.43 (1) and (2), 307.51 (3), 308.05 (Note 1) and (Note 2), 308.10 and (Note 2), and 308.12 (2) and (Note); and to create SPS 307.20 (15g), (15r), and (17m), 307.31 (2) (b) 2., 307.41 (1) (b) and (c), and 307.44 (5) and (Note), relating to explosives, fireworks, mines, pits, and quarries.
Analysis prepared by the Department of Safety and Professional Services.
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ANALYSIS
Statutes interpreted:
Statutory authority:
Explanation of agency authority:
Section 101.02 (1), Stats., provides “[t]he department shall adopt reasonable and proper rules and regulations relative to the exercise of its powers and authorities and proper rules to govern its proceedings and to regulate the mode and manner of all investigations and hearings.” Section 101.15 (2) (e), Stats., provides “[t]he department shall promulgate rules to effect the safety of mines, explosives, quarries and related activities. Such rules shall provide for the establishment of uniform limits on permissible levels of blasting resultants to reasonably assure that blasting resultants do not cause injury, damage or unreasonable annoyance to any person or property outside any controlled blasting site area.” Section 167.10 (6m) (e), Stats., provides “[t]he department of safety and professional services shall promulgate rules to establish safety standards for the manufacture in this state of fireworks and devices listed under sub. (1) (e), (f) or (i) to (n).” Related statutes or rules:
None.
Plain language analysis:
The rules update Wisconsin’s standards for the use of blasting materials and blasting resultants to the 2013 edition of the National Fire Protection Agency’s (NFPA) 495, Explosive Materials Code, with certain specified modifications to the requirements of NFPA 495. On June 20, 2017, the Attorney General’s Office consented to incorporation of 2013 NFPA 495 into ch. SPS 307. Provisions concerning blasting notifications, preblasting surveys, and reporting of adverse effects of blasting have been updated to provide clarity and to reflect current industry and enforcement practices.
Current rules require the department to annually inspect a fireworks manufacturing premises. This requirement is revised to require an inspection at least once every 3 years and specify the fee for these periodic inspections will be assessed at a flat rate of $80, $120, or $160.
Summary of, and comparison with, existing or proposed federal statutes and regulations:
Explosives and fireworks
Chapter 40 of 18 USC 1102 regulates the importation, manufacture, distribution, and storage of explosive materials. Title 27 CFR Part 555 regulates commerce in explosives. The provisions of ch. SPS 307, Explosives and Fireworks, do not duplicate or conflict with these federal statutes and regulations. Mines, pits, and quarries
No person may operate a mine, pit or quarry unless the person complies with 30 USC 811, 957, and 961 and the safety and health standards in Title 30 CFR Parts 1 to 199. The provisions of ch. SPS 308, Mines, Pits and Quarries, do not duplicate or conflict with these federal statutes and regulations. Comparison with rules in adjacent states:
Illinois:
Part 200 of 62 Ill. Adm. Code implements the Illinois Explosives Act [225 ILCS 210] and applies to all acquisition, storage, use, transfer, and disposal of explosive materials. These rules do not adopt or incorporate by reference NFPA 495, Explosive Materials Code.
The Fireworks Regulation Act of Illinois [425 ILCS 30] provides the Office of the Illinois State Fire Marshal with the authority to inspect fireworks plants. The Act does not specify a required frequency of inspections.
Iowa:
Iowa Code chapter 101A provides for the regulation of explosive materials, including provisions for licensing, inspections, and disposal, and notice and reporting requirements. 661 IAC 235 establishes a commercial explosive licensing program in the State Fire Marshal Division of the Iowa Department of Public Safety. These statutes and rules do not adopt or incorporate by reference NFPA 495, Explosive Materials Code.
The State of Iowa has no specific regulations concerning the manufacture of fireworks.
Michigan:
Mich Admin Code, R 338.2371 adopts by reference the provisions of Federal Occupational Safety and Health Administration (OSHA) Regulation CFR 1910.109, Explosives and Blasting Agents. CFR 1910.109 applies to the manufacture, keeping, having, storage, sale, transportation, and use of explosives, blasting agents, and fireworks. It does not apply to the sale and use (public display) of fireworks. These rules do not adopt or incorporate by reference NFPA 495, Explosive Materials Code.
Mich Admin Code, R 29.2901 to 29.2929 provides general rules for fireworks safety, including authorizing the Bureau of Fire Services of the Michigan Department of Licensing and Regulatory Affairs to conduct inspections of fireworks manufacturing plants. The rules do not specify a required frequency of inspections.
Minnesota:
Minnesota Rules, chapter 7500 adopts safety standards for the manufacture, storage, and use of explosives and blasting agents, consistent with Minnesota Statutes, sections 299F.71 to 299F.83. It applies to the manufacture, retention, possession, storage, sale, and use of explosives, blasting agents, and fireworks. These rules do not adopt or incorporate by reference NFPA 495, Explosive Materials Code.
The Minnesota Fire Code (Minnesota Rules, chapter 7511) applies to fireworks manufacturing plants. Minnesota Statutes, section 299F.011 authorizes the Minnesota Department of Public Safety to conduct inspections of fireworks manufacturing plants as part of its enforcement of the Minnesota Fire Code. These statutes and rules do not specify a required frequency of inspections.
Summary of factual data and analytical methodologies:
The methodology for updating Wisconsin’s standards for the use of blasting materials and blasting resultants in ch. SPS 307 was a review and assessment of the latest edition of the NFPA standard that serves as the basis for Wisconsin’s standards. With the participation of the Explosives, Fireworks, Mines, Pits and Quarries Code Advisory Committee, staff compared the changes in the 2010 and 2013 editions of NFPA 495, Explosive Materials Code, to the 2006 edition currently adopted under ch. SPS 307. Chapters SPS 307 and 308 were also reviewed in their entirety to ensure consistency with current industry and enforcement practices and applicable Wisconsin statutes. Analysis and supporting documents used to determine effect on small business or in preparation of economic impact analysis:
