Article 16. Explosives

Section 450. Application of article.

1. This article shall apply to persons engaged in the manufacture, ownership, possession, storage, use, transportation, purchase, sale or gift of explosives as defined in subdivision one of section four hundred fifty-one.

2. This article shall not apply to explosives while being transported in conformity with federal law or regulations, nor except as may be herein otherwise provided to persons who manufacture, own, possess, store, use, transport, purchase, sell or give explosives within the territorial boundaries of cities having more than one million inhabitants, nor to the armed forces of the United States, the national guard, the state guard and duly constituted police and firefighting forces of the state and its civil and political subdivisions.

3. For all purposes of this article, explosives in the possession of an employee within the scope of his duties, shall be considered to be in the possession of the employer.

Section 451. Definitions.

Whenever used in this article:

1. "Explosives" means gunpowder, powders used for blasting, high explosives, blasting materials, detonating fuses, detonators and other detonating agents, smokeless powder and any chemical compound or any mechanical mixture containing any oxidizing and combustible units, or other ingredients in such proportions, quantities, or packing that ignition by fire, friction, concussion, percussion or detonation of any part thereof may and is intended to cause an explosion, but shall not include gasoline, kerosene, naphtha, turpentine, benzine, acetone, ethyl ether, benzol and all quantities of black powder not exceeding five pounds for use in firing of antique firearms or artifacts or replicas thereof. Fixed ammunition and primers for small arms, fire-crackers, safety fuses and matches shall not be deemed to be explosives when, as may be determined by the board in its rules, the individual units contain any of the above-mentioned articles or substances in such limited quantity, of such nature and so packed that it is impossible to produce an explosion of such units to the injury of life, limb or property.

2. "Highway" means any public street, public highway, public alley or navigable stream, which is open for traffic. Navigable streams shall be considered as only those streams susceptible of being used, in their ordinary condition, as highways of commerce.

3. "Railroad" or "railway" means any railroad which carries passengers for hire, but shall not include auxiliary tracks, spurs and sidings installed and primarily used in serving any mine, quarry or plant.

4. "Building" means any building regularly occupied in whole or in part as a habitation for human beings, and any church, school house, railway station or other building or place where people are accustomed to live, work or assemble, but does not mean or include any of the buildings of a manufacturing plant where the business of manufacturing explosives is carried on.

5. "Explosives factory" means any building or other structure in which the manufacture of explosives or any part of the manufacture thereof is carried on.

6. "Magazine" means any building or other structure, other than an explosives factory, used to store explosives.

7. "Efficient barricade" means natural features of the ground, a dense woods, an artificial mound or a properly revetted wall of earth not less than three feet thick at the top, spaced at least three feet at the bottom from any explosives factory or magazine, the height of which is such that any straight line drawn from the top of any side wall of the explosives factory or magazine to the top of a building or to a point twelve feet above the center of a railroad or highway to be protected will pass through such intervening barricade.

8. "Person" includes any natural person, partnership, association or corporation.

9. "Manufacturer" means any person who is engaged in the manufacture or production of explosives.

10. "Dealer" means any person engaged in the business of buying and selling explosives.

11. "Pyrotechnics" means any combustible or explosive compositions of manufactured articles designed and prepared for the purpose of producing audible or visible effects that are commonly referred to as fireworks.

Section 452. Packing and labeling.

No person shall own, possess, store, deal in, sell, give or purchase explosives unless the packing, or encasement, and the marking and labeling of such explosives shall comply with the rules of the board.

Section 453. Storage.

No person shall store explosives except in a magazine constructed and located in accordance with the provisions of this article and the rules of the board and unless a certificate, which shall be attached to the magazine on the inside thereof, has been issued for such magazine. No person shall store more than three hundred thousand pounds of explosives in any one magazine at any time.

This section shall not apply to explosives while being legally blasted or while legally in the custody of a common carrier awaiting shipment or delivery to a consignee during the time permitted by federal law; nor to the storage of such limited amount of sporting or smokeless powders as may be permitted by the rules of the board. § 454. Construction of magazines. Unless otherwise prescribed by the board in its rules, magazines in which explosives shall be lawfully kept or stored shall be constructed of brick, concrete, iron or wood covered with iron, and shall have no openings except for ventilation and entrance. All magazines, except those in mines and tunnels, shall be located above ground. All magazines shall be kept clean and dry at all times.

Section 455. Magazine precautions.

No person shall unlock or open the doors of magazines, except for the lawful storage or removal of explosives. No person shall have matches or fire of any kind in any magazine. No person shall store or keep blasting caps, detonating or fulminating caps, or detonators in a magazine in which any other type of explosive is stored or kept. No person shall open any package of explosives within fifty feet of any magazine, nor shall any explosives be kept in a magazine except in the original containers. No person shall discharge firearms within five hundred feet of a magazine or explosives factory, or at or against any such building or magazine. Any theft or loss of explosives from a storage magazine or otherwise, shall immediately be reported to the industrial commissioner and the state or local police or county sheriff.

Section 456. Location of magazines.

The quantity of explosives that may be stored in any explosives factory or magazine shall depend upon its distances from the nearest building, railroad or highway or other magazine. The distances that a quantity of explosives may be stored from the nearest magazine, building, railroad or highway, shall be as determined by the rules of the board. All such distances may be reduced one-half when the magazine, building, railroad or highway to be protected is adequately screened from the explosives factory or magazine by an efficient barricade as defined in subdivision seven of section four hundred fifty-one.

Section 457. Relocation of magazines.

1. When any magazine is moved from the location for which it was certified according to section four hundred fifty-six of this article, and the magazine is or is intended to be used for the storage of explosives and will be in the new location for more than twenty-four hours, the commissioner shall be notified as to the new location of the magazine. Such notification shall be made no later than one business day prior to the move. The notification shall contain all of the information required by the commissioner.

2. The provisions of subdivision one of this section shall not apply where the relocation has been ordered by police, fire or other authorized emergency personnel, or where the continued storage in the current location would constitute a threat to life or property. In such cases the commissioner shall be notified as soon as practicable after the relocation but in no case more than two business days following such relocation.

3. When a magazine is abandoned, sold or removed from service, the certificate holder shall notify the commissioner no later than three business days from the date of such action and shall surrender the certificate to the commissioner.

Section 458. Licenses and certificates.

1. No person shall purchase, own, possess, transport or use explosives unless a license therefor shall have been issued as provided in this article.

Application for such a license shall be made to the commissioner on forms provided and shall contain such information as the commissioner may require. Where the commissioner finds that the applicant has complied with the requirements of this article and the rules promulgated hereunder, the commissioner shall issue a license or renewal thereof which shall be valid for one year from the date of issuance. Such application and each renewal thereof shall be accompanied by a fee of fifty dollars non-refundable to be payable to the commissioner.

2. No person shall manufacture, deal in, sell, give or dispose of explosives unless a license therefor shall have been issued to such person for that purpose by the commissioner as provided in this article, nor shall any person sell, give or dispose of explosives to, or manufacture explosives for any person who does not hold a license as provided by subdivision one of this section.

Application for such a license, which shall be renewed annually, shall be made to the commissioner on forms provided and shall contain such information as the commissioner may require. The commissioner, after investigation of the application, shall issue a license or renewal thereof, which shall be valid for one year from the date of issuance, where the commissioner finds that the applicant has complied with the requirements of this article and the rules promulgated hereunder. Each application for such a license, or for its renewal, shall be accompanied by a fee of one hundred dollars non-refundable to be payable to the commissioner.

3. No person shall keep or store explosives unless a certificate therefor shall have been issued by the commissioner as herein provided, but this requirement shall not apply to the storage at any one time by farmers of two hundred pounds or less of blasting explosives for agricultural purposes.

Application for such a certificate shall be made to the commissioner on forms provided and shall contain such information as the commissioner may require. The commissioner, where it is found that the applicant has complied with the requirements of this article, and the rules promulgated hereunder and all other applicable sections of this chapter and regulations promulgated by the commissioner, shall issue a certificate or a renewal thereof, which shall be valid for one year from the date of issuance. In addition to any other causes for revocation of a certificate hereinafter provided, the commissioner may revoke or modify such certificate because of any change in the conditions under which it was granted, or for failure to pay the annual fee hereinafter provided. The owner or user of a magazine shall annually pay to the commissioner in advance a fee, subject to the discretion of the commissioner and not less than fifty dollars, which shall be proportioned according to the quantity and type of explosives authorized by the certificate to be stored in the magazine.

4. An application for a license or a certificate pursuant to subdivision one, two or three of this section shall be sworn to under oath and shall contain information sufficient to identify the applicant, and the purpose for which and the place where the explosives are to be used, manufactured, dealt in, given, disposed of or stored, as the case may be, and to demonstrate the eligibility of such applicant for the license or certificate requested. The commissioner may require that the application include, among other things, photographs, fingerprints and personal references. Such fingerprints shall be submitted to the division of criminal justice services for a state criminal history record check, as defined in subdivision one of section three thousand thirty-five of the education law, and may be submitted to the federal bureau of investigation for a national criminal history record check.

5. Before a license or certificate is issued, the commissioner shall investigate the eligibility of the applicant. The commissioner shall have the authority to request and receive from any department, division, board, bureau, commission or agency of the state or local government thereof such assistance and information as will enable him properly and effectively to carry out his powers and duties under this article.

6. (a) The investigation prescribed in subdivision five of this section may include, but is not limited to the following:

(1) a personal interview of the applicant by a designated agent of the commissioner if the commissioner is unable to make a determination on the basis of the factors contained in the application;

(2) an examination as to the applicant's knowledge and ability with respect to basic safety precautions in the possession, handling, storage, and transportation of explosives, and for such purpose the commissioner may prescribe tests which the applicant shall be required to pass as a prerequisite to the issuance of the license or certificate. The test may be administered by any person or agency designated by the commissioner.

(b) The investigation prescribed in subdivision five of this section shall include a report from the New York state identification and intelligence system, and such other identification services of the state or federal government as may be necessary or appropriate for this purpose.

7. The commissioner may waive any of the procedures set forth in subdivision six (a) of this section with respect to any applicant who has a license or certificate which was issued pursuant to this section at any time prior to March first, nineteen hundred seventy, and which was legally valid and effective on such date. The commissioner also may waive fingerprinting of an applicant who has a valid license for a pistol or revolver in accordance with section 400.00 of the penal law.

8. Exceptions. Except for the provisions of subdivision eleven, this section shall not apply to smokeless powder.

9. Within thirty days after the issuance of a license or certificate under this section, the commissioner shall notify the chief executive officer of the municipality where the licensee resides or where the certificate holder has his place of business of the issuance of such license or certificate, and provide such officer with such other information pertaining thereto as the board may from time to time prescribe.

10. Agencies of the United States, the state and its political and civil subdivisions which are subject to the requirements of this article and which, in the exercise of their functions, are required to purchase, own, store, use or transport explosives shall not be liable for the payment of any fee required by this section.

11. No explosives shall be sold, given or delivered to any person under eighteen years of age, whether such person is acting for himself or for another person, nor shall any such person be eligible to obtain any license or certificate required under this section.

Section 459. Denial or revocation of license or certificate.

1. A license or certificate, its renewal or continuation may be denied where the commissioner has probable reason to believe, based on knowledge or reliable information, or finds, after due investigation that the applicant or any officer, servant, agent or employee of the applicant is not sufficiently reliable and experienced to be authorized to own, possess, store, transport, use, manufacture, deal in, sell, purchase or otherwise handle, as the case may be, explosives, lacks suitable facilities therefor, has been convicted of a crime for which he has been sentenced to serve one or more years in prison, is disloyal or hostile to the United States or has been confined as a patient or inmate in a public or private institution for the treatment of mental diseases. Whenever the commissioner denies an application for a license or certificate or the renewal thereof, he shall, within five days of such denial, give notice thereof and the reasons therefor in writing to the applicant personally or by mail to the address given in the application. Such denial may be appealed to the commissioner who shall follow the procedure provided by subdivision three of this section.

2. The commissioner may revoke any certificate or license on any ground or grounds authorized in subdivision one of this section for the denial of a license or certificate, or for a violation of the terms of such license or certificate, or for a violation of any provision of this article or of the rules of the board, or for non-compliance with any order issued by the commissioner within the time specified in such order.

Where the commissioner has probable reason to believe, based on knowledge or reliable information, that a licensee or certificate holder is disloyal to the United States, he may summarily revoke the license or certificate or may, in his discretion, give such licensee or certificate holder notice and opportunity to be heard as provided in subdivision three of this section. Revocation of a license or certificate for any other ground may be ordered only after giving written notice and an opportunity to be heard to the holder thereof. Such notice may be given to the holder personally or by mail and shall specify the ground or grounds on which it is proposed to revoke the license or certificate. When a license or certificate is revoked, the commissioner may direct the disposition of explosives held by such licensee or certificate holder. Upon revocation of a license or certificate by the commissioner, the holder thereof shall surrender his license or certificate to the commissioner at once.

3. Hearings. Unless, within fifteen days from the date of notice, the applicant for a license or certificate or the recipient of a notice stating that the commissioner proposes to revoke a license or certificate held by him, shall file a written answer with the commissioner denying the ground or grounds on which a license or certificate has been denied or ground or grounds on which revocation of a license or certificate is sought, and shall request a hearing, the commissioner may make a final determination respecting the application for a license or certificate, or may revoke a license or certificate forthwith. If, within such fifteen days, the applicant, licensee or certificate holder files such answer and request for hearing, the commissioner shall schedule a hearing. The notice of hearing shall state the time, place, and subject of the hearing, and shall be mailed to the applicant, certificate holder or licensee at his last known address at least five days before the date of hearing. Hearings shall be held by the commissioner or his representative, and the applicant, certificate holder or licensee may appear in person or may be represented by an agent. After such hearing, the commissioner shall render his decision in writing.

Section 460. Seizure, impounding, destruction or disposition of explosives.

1. The commissioner is hereby authorized and empowered, without application to any court, to seize and impound any explosives found within this state, except in cities having a population of more than one million inhabitants, which are in apparent violation of any of the provisions of this article, rules of the board or laws or regulations of the federal government, or which have been abandoned or lost, or where the commissioner has reason to believe that public safety is endangered by such explosives. Such explosives may be removed and transported by the commissioner and stored in magazines provided or obtained for that purpose by the state or by the commissioner.

2. The owner of such explosives may, within five days of such seizure, make written demand upon the commissioner for a hearing. Upon such demand, the commissioner shall give the owner written notice in person or by mail, of the time and place of such hearing to be held not less than ten days thereafter.

3. Where no hearing is demanded within the time herein prescribed or where, after hearing, the commissioner finds that there has been a violation of the provisions of this article, rules of the board or laws or regulations of the federal government, or that public safety is endangered, he may destroy or order the destruction of such explosives, or direct such other disposition of the explosives as he deems proper. If the commissioner finds there has been no such violation and that public safety has not been endangered, he shall return such explosives to the owner thereof.

4. Where such explosives have been abandoned or lost, and no claimant has appeared within thirty days, demanded the return of the explosives and proved, to the satisfaction of the commissioner, his title to and right of possession of such explosives, the commissioner may destroy or direct the destruction thereof, or direct such other disposition thereof as he deems proper.

5. Any provision herein to the contrary notwithstanding, where, in the opinion of the commissioner, the manufacture, condition, packing or location of explosives is such that its continued existence or transportation is a danger to public safety, he may, without hearing and without liability therefor to the owner thereof, seize and destroy or direct the seizure and destruction of such explosives.

Section 461. Record and notice of sales, deliveries or gifts.

1. Every person selling, delivering or giving away an explosive shall keep at his principal office or place of business within the state, a record of the transaction, including the name or type and quantity of the explosive, such identification of the explosive as may be required by rules of the board, the date of each sale, delivery or gift, the name and business address of the purchaser, donee or person to whom delivered, the number of the license to own or possess explosives, if such license is required by section four hundred fifty-eight of this article, and the name and address of the person taking the explosives away. A report of all such transactions, when requested by him, shall be submitted to the commissioner. Such record shall be open to inspection by the commissioner or by federal, state and local enforcement officers at all times. No person shall have in his possession any explosives unless he has a bill of sale or other evidence of title thereto.

2. Any provision in this article to the contrary notwithstanding, no person in a city having more than one million inhabitants shall ship or transport or cause to be shipped or transported explosives from such city to any other place within the state, unless such person shall, at least twenty-four hours prior to such shipment, transmit to the commissioner a statement in writing giving the weight, name or brand and type of explosives, the name and address of the person to whom such explosives are to be sold, shipped, transported or delivered and the date thereof. No person shall make any such shipment except to a holder of a license issued hereunder.

3. No person within the state shall purchase, receive or accept delivery of explosives from any place outside the state, and no person shall bring explosives into the state from any place outside the state, unless, in addition to holding a license issued hereunder, such person shall, not more than twenty-four hours thereafter, transmit to the commissioner by mail a written statement giving weight, name or brand and type of the explosives, the name and address of the shipper and the date of shipment.

Section 462. Rules and regulations.

The commissioner may make rules supplemental to this article as he shall deem necessary or desirable to assure the public safety as well as to provide reasonable and adequate protection of the lives, health and safety of persons employed in the manufacture, storage, handling and use of explosives. The commissioner may prescribe such regulations as he may deem necessary and proper for the administration of this article.

Section 463. Review.

All questions of fact arising under this article shall be decided by the commissioner and there shall be no appeal from his decision on any such question of fact, but there shall be a right of review by the board of standards and appeals of any decision of the commissioner denying an application for a license or certificate, or denying the renewal thereof, or revoking a license or certificate, as provided in section one hundred ten, article three of the labor law.

Section 464. Penalties.

Any person violating any provision of this article, or any rule or regulation made hereunder, shall be guilty of a class E felony; provided, however, that any person who possesses an explosive without being duly licensed or otherwise authorized to do so under the provisions of this article shall be guilty of a class D felony. Whenever, as a result of a plea bargaining agreement the charge is reduced to a lesser offense, such offense may, in addition to any term of imprisonment prescribed by such offense, be punishable by a fine not to exceed twenty-five hundred dollars.

Section 464-a. Local laws.

Except with regard to cities having a population of over one million, the provisions of this article and the rules adopted pursuant thereto shall be the minimum standard required and shall supersede any special law or local ordinance inconsistent therewith, and no local ordinance inconsistent therewith shall be adopted, but nothing herein contained shall prevent the enactment by local law or ordinance of additional requirements and restrictions.

Section 465. Separability.

If any provision of this article or the application thereof to any person or circumstances is held invalid, the remainder of the article and the application of such provision to other persons or circumstances shall not be affected thereby.