HB1453 (2006) Detail

Relative to fireworks.


HB 1453-FN- AS INTRODUCED

2006 SESSION

06-2453

05/04

HOUSE BILL 1453-FN

AN ACT relative to fireworks.

SPONSORS: Rep. L. Christiansen, Hills 27

COMMITTEE: Criminal Justice and Public Safety

ANALYSIS

This bill revises RSA 160-B, relative to fireworks, and RSA 160-C, relative to permissible fireworks.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

06-2453

05/04

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Six

AN ACT relative to fireworks.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Fireworks. RSA 160-B is repealed and reenacted to read as follows:

CHAPTER 160-B

REGULATED FIREWORKS

160-B:1 Definitions. As used in this chapter:

I. “Fireworks” means fireworks as defined in 27 C.F.R. section 555.11.

II. “Regulated fireworks” means display fireworks and are fireworks for which a federal permit is required under 18 U.S.C. sections 841-848 and a state license and a local permit are required under this chapter.

III. “Commissioner” means the commissioner of the department of safety.

IV. “Display” means the use, explosion, activation, ignition, discharge, firing or any other activity which is intended to cause or which causes a firework to do what it was manufactured to do.

V. “Sale” or “sell” means to sell, give, or transfer to another.

VI. “Retail” means the sale to any consumer or person not engaged in the business of making sales of fireworks.

VII. “Wholesale” means engaging in the business of making sales to any other person engaged in the business of making sales of regulated fireworks.

VIII. “Consumer fireworks” means consumer fireworks as defined in 27 C.F.R. section 555.11 and formerly known as class C common fireworks. Consumer fireworks are not regulated by title 18.

IX. “Display fireworks” means display fireworks as defined in 27 C.F.R. section 555.11 and formerly known as class B special fireworks. Display fireworks are regulated by Title 18 of the United States Code.

160-B:2 Sale; Penalty.

I. No person shall sell regulated fireworks other than a person who meets all of the following requirements:

(a) Has a federal permit to sell regulated fireworks issued in accordance with title 18 of the United States Code.

(b) Has a state license to sell regulated fireworks issued pursuant to RSA 160-B:6.

(c) Has a local permit to sell regulated fireworks issued pursuant to RSA 160-B:6.

II. No person shall sell regulated fireworks other than:

(a) To a person who presents a certificate of competency issued pursuant to RSA 160-B:7 and RSA 158:9-f and leaves a copy of such certificate and who presents a permit to display regulated fireworks issued pursuant to RSA 160-B:7 and leaves a copy of such permit; or

(b) To a person who possesses and shows a license for the storage of regulated fireworks issued pursuant to RSA 158:9-f; or

(c) At wholesale to a person engaged in the sale of regulated fireworks meeting all of the specifications in RSA 160-B:6, VII.

III. Any person who violates the provisions of this section shall be guilty of a misdemeanor.

160-B:3 Display; Penalty.

I. No person shall display regulated fireworks other than a person who meets all of the following requirements:

(a) Has obtained a certificate of competency issued pursuant to RSA 158:9-f which shall be in such person’s possession at the time of display and which has not been revoked or suspended.

(b) Has obtained a municipal permit to display issued pursuant to RSA 160-B:7 which shall be in such person’s possession and which has not been revoked or suspended.

II. Any person who violates the provisions of this section by displaying regulated fireworks shall be guilty of a misdemeanor.

160-B:4 Possession; Penalty.

I. No person shall possess regulated fireworks other than the following:

(a) A person who has in the person’s possession a certificate of competency issued pursuant to RSA 158:9-f and a valid permit to display issued pursuant to RSA 160-B:7.

(b) A person who has a federal permit to sell regulated fireworks issued in accordance with Title 18 of the United States Code, a state license issued pursuant to RSA 160-B:6, and a municipal permit issued in accordance with RSA 160-B:6, or an employee of such person. For the purposes of this subparagraph, “employee” shall be limited to a person who is reported as an employee for state and federal tax purposes and for unemployment compensation purposes.

(c) A common carrier which is in possession of a bill of lading indicating that fireworks are being shipped to or from a licensed and permitted seller or a person who has a certificate of competency and a permit to display.

(d) Any manufacturer or common carrier shipping fireworks in interstate commerce through the state of New Hampshire which are not being delivered or received in this state.

(e) A person who has a licensed facility for the storage of regulated fireworks pursuant to RSA 158:9-c.

II. Any person who violates the provisions of this section shall be guilty of a violation unless the person possesses with intent to sell, in which case such person shall be guilty of a misdemeanor.

160-B:5 Issuance of Permit; Penalty.

I. No person shall issue a permit or license to display fireworks except as provided in this chapter.

II. Any person who violates the provisions of this section shall be guilty of a misdemeanor.

160-B:6 Requirements for Sale of Fireworks.

I. Any person who desires to sell regulated fireworks as provided in RSA 160-B:2 may apply to the municipality in which such person desires to sell fireworks. Such application shall be in a form prescribed by the commissioner. The licensing board of any municipality or, if one does not exist, the governing body may issue a permit to sell regulated fireworks to a person who applies, provided that the person has a valid permit for the sale of fireworks issued pursuant to title 18 of the United States Code. No permit to sell fireworks shall be issued by the governing body without prior approval of the fire chief, if any, of the municipality. The municipality may charge a fee for the permit or application for permit under this section.

II. After the person has obtained a municipal permit to sell regulated fireworks, such person may apply for a state license to sell regulated fireworks. Upon application of any person, the commissioner, or a person designated by the commissioner, may issue a license authorizing the applicant to sell or market regulated fireworks in this state for not more than one year from the date of issue, provided the person has first obtained a permit to sell regulated fireworks pursuant to RSA 160-B:6, I. The license shall bear the name, address, description, and signature of the licensee. The license shall be displayed at all times, openly and publicly, at the licensee’s place of business. The license shall be issued within a reasonable time after application.

III. The state license may be issued to an applicant who, at the time such license is issued, possesses a permit issued in accordance with the provisions of 18 U.S.C. sections 841-848, governing fireworks, and a permit issued pursuant to RSA 160-B:6, I. No license shall be issued for the sale of regulated fireworks unless the applicant establishes that it will locate its business in a permanent structure which meets all applicable fire safety codes, building codes, zoning codes, and the requirements of local ordinances. No license for the sale of regulated fireworks shall be issued to or held by any person who has been convicted of a felony if the felony has not been annulled by a court of record. No license shall be issued to any person under 21 years of age.

IV. Buildings used for the sale or storage of regulated fireworks shall be dedicated solely to the sale or storage of regulated fireworks and items relating to the sale and promotion of fireworks provided for in rules adopted by the commissioner pursuant to RSA 541-A and shall comply with the applicable requirements of the state fire code adopted pursuant to RSA 153:5.

V. Prior to the issuance of a state license, the department of safety may conduct a background investigation of the applicant and may conduct an inspection of the site, including all buildings, in which the regulated fireworks are to be sold or stored.

VI. If the application for a state license is denied, the reasons for such denial shall be stated in writing, in duplicate, the original of which shall be delivered to the applicant, and the copy thereof kept in the office of the department of safety.

VII. The fee for a license for each location shall be $1,500 per year, payable annually to the department of safety for deposit into the general fund.

VIII. A person who has a federal permit issued in accordance with the provisions of Title 18 of the United States Code, a state license issued pursuant to this section, and a local permit issued pursuant to this section may sell regulated fireworks; however, such a person shall only sell regulated fireworks to a person who shows a certificate of competency issued pursuant to RSA 158:9-f, or who shows a license for the storage of regulated fireworks issued pursuant to RSA 158:9-c, or a license to sell regulated fireworks pursuant to this chapter. Any sale which the seller makes shall be recorded, and the record, at a minimum, shall contain a copy of the purchaser’s certificate of competency and display permit and, in the case of a wholesale sale, the purchaser’s retail number from the state of residence, IRS tax identification number, or such other information as the commissioner shall specify by rule adopted pursuant to RSA 541-A.

IX. A wholesale sale shall not be made to a person or corporation which resides in New Hampshire other than to a person or corporation licensed to sell fireworks pursuant to paragraphs I-III of this section. Any wholesale sale shall be shipped by common carrier or by the wholesaler making the sale. For the purposes of this shipment, the wholesaler shall not be authorized to make any person an agent for the limited purpose of transporting fireworks.

X. The only retail sale allowed shall be a sale to a person who possesses a certificate of competency and a display permit and leaves a copy of such certificate and display permit with the seller.

XI. No person under the age of 21 shall be engaged in the business of handling or selling any regulated fireworks; provided, however, that a person less than 21 years of age but at least 18 years of age may handle and sell regulated fireworks at a licensed sales or storage location or may handle regulated fireworks at a permitted display site if he or she is under the direct supervision of a person 21 years of age or older.

XII. Any person who knowingly provides false information to the department of safety on an application for the sale of fireworks as provided in this section shall be guilty of a class A misdemeanor.

160-B:7 Requirements for Display of Regulated Fireworks.

I. The commissioner may issue a certificate of competency to display regulated fireworks as provided in RSA 158:9-f to a person who meets the requirements established under that section.

II. Any municipality, fair association, amusement park or other organization may apply for a permit to display regulated fireworks and shall include in the application the name of a person who has been issued a certificate of competency who shall be responsible for conducting the display and a copy of that individual’s certificate.

III. The chief of police, licensing board, or governing body of the municipality, after an inspection has been conducted by the fire chief, may issue a permit to display regulated fireworks. The permit shall specify the date on which the display is to be conducted and any other conditions that may be imposed.

IV. The display shall be of such a character, and so located and displayed, as in the opinion of the chief of the fire department or fire ward, after proper inspection, that it shall not be hazardous to property or endanger any person.

V. An application for a display permit shall be made in writing at least 15 days in advance of the date of the display. The town, city or village district may charge a reasonable fee for a permit to display regulated fireworks. No display permit granted under this section shall be transferable, and each display permit shall be valid for only one display to be held on the date permitted. If, in the opinion of the chief of the fire department, conditions deteriorate during the 15 days before the date for which such permit is granted so that a fire hazard exists, the chief may revoke the permit.

160-B:8 Rulemaking. The commissioner shall adopt rules pursuant to RSA 541-A relative to:

I. The procedure and reasons for suspending or revoking a license issued pursuant to RSA 160-B:6.

II. Expanding the definition of fireworks to cover any other devices used for the purpose of producing a visible or an audible effect by combustion, deflagration, or detonation which are not covered by the federal regulations governing regulated fireworks but which are deemed by the commissioner to constitute a threat to public safety.

III. Insurance, bonding, or other evidence of financial responsibility to be required of any person licensed under this chapter to display regulated fireworks.

IV. All matters necessary to implement the provisions of RSA 160-B:12, relative to exceptions.

V. Forms for applications and state licenses to sell regulated fireworks.

VI. Requirements for the safe use, handling, and storage of regulated fireworks.

160-B:9 Enforcement. Upon application, the superior court or district court is authorized to permit the law enforcement officials or certified fire citation officers of the state, counties, or any city or town to seize, take, remove, or cause to be removed at the expense of the owner all stocks of regulated fireworks offered or exposed for sale, stored or held in violation of this chapter. Nothing in this section shall be construed to restrict or limit any other authority granted by law to law enforcement officials or certified fire citation officers.

160-B:10 Local Option. Any municipality in the state, by action of its local legislative body or local governing body, may vote to allow or to prohibit, within that municipality, the issuance of permits or licenses to the extent authorized under RSA 160-B:6 and 160-B:7. If the municipality has voted to prohibit the issuance of permits or the display of fireworks prior to March 1, 1992, such decision shall remain in effect unless subsequent action is taken under this section.

160-B:11 Civil Liability. In addition to any other penalties imposed under this chapter, any person who violates the provisions of this chapter shall be liable, in any civil action, to any person for damages resulting from the illegal sale or use of fireworks, and neither assumption of risk nor contributory negligence shall be a defense for such violator.

160-B:12 Exceptions. The commissioner may issue permits granting exceptions to the provisions of this chapter to persons who intend to use fireworks for agricultural, railroad, or military purposes, provided that the type of fireworks to be used are designed in such a way as to accomplish the purpose for which the permit is sought and provided that the person who applies for the exception has first received approval by the appropriate local official.

160-B:13 Appeal. Any person aggrieved by a decision of the commissioner pursuant to this chapter may appeal pursuant to RSA 541.

160-B:14 Immediate Suspension Authority. Notwithstanding any other provision of law to the contrary, the commissioner may immediately suspend a license issued pursuant to RSA 160-B:6 if the commissioner has evidence that the licensee is selling regulated fireworks contrary to any of the provisions of RSA 160-B or any rules adopted under this chapter. Any person whose license is suspended pursuant to this section shall be given the opportunity for a hearing within 10 days of the suspension. Any person found to be selling regulated fireworks after the person’s license has been suspended pursuant to this section shall not have the license reinstated for a minimum of one year from the date of suspension.

160-B:15 Advertising.

I. No person shall advertise fireworks by means of radio, television, newspaper, flyer, catalog, billboard, mobile or stationary sign, or any other means in such a way as to confuse or mislead the public about:

(a) The conditions under which fireworks may be purchased.

(b) The conditions under which fireworks may be used.

(c) The requirements contained in RSA 160-B, RSA 160-C, or any other provision of state or federal law or regulations.

II. Any person who violates the provisions of this section shall be guilty of a misdemeanor.

160-B:16 Certain Sparklers Prohibited; Penalties.

I. Notwithstanding any law to the contrary, the sale, possession or display of sparklers consisting of a wire or stick which contain chlorates or perchlorates is prohibited.

II. Any person who sells or possesses with intent to sell sparklers consisting of a wire or stick which contain chlorates or perchlorates shall be guilty of a misdemeanor.

III. Any person who displays or possesses without intent to sell sparklers consisting of a wire or stick which contain chlorates or perchlorates shall be guilty of a violation.

160-B:17 Retail Sale of Reloadable Aerial Shells Prohibited; Penalty. The retail sale of reloadable aerial shells is prohibited. In this section, “reloadable aerial shell” means a consumer (formerly class C common) firework device that is individually fused and designed to be inserted by the consumer into a tube prior to firing. Any person who violates the provisions of this section shall be guilty of a misdemeanor.

160-B:18 Retail Sale of Firecrackers Prohibited; Penalty. The retail sale of firecrackers is prohibited. In this section, “firecracker” means a ground device firecracker as defined by the American Pyrotechnics Association in APA Standard 87-1 (2001) 3.1.3.1, as amended. Any person who violates the provisions of this section shall be guilty of a misdemeanor.

160-B:19 Retail Sale of Bottle Rockets Prohibited; Penalty. The retail sale of bottle rockets is prohibited. In this section, “bottle rocket” means a bottle rocket as defined by the American Pyrotechnics Association in APA Standard 87-1 (2001) 3.1.2.1, as amended. Any person who violates the provisions of this section shall be guilty of a misdemeanor.

160-B:20 Emergency Removal From Sale or Use of Unsafe Devices.

I. The commissioner may, upon the recommendation of the state fire marshal or the director of state police, prohibit the sale or use of any regulated fireworks that pose an imminent threat to life and property.

II. Upon notification by the commissioner or designee that a regulated firework is prohibited for sale or use, a person licensed to sell regulated fireworks shall remove the item from the sales area and shall not sell the item to any person.

III. Any person who sells regulated fireworks after being notified by the commissioner or designee that the item is prohibited for sale or use shall be guilty of a class A misdemeanor for the first offense and a class B felony for the second offense. In addition, the commissioner may revoke the violator’s license for a minimum period of 30 consecutive days.

IV. Any person who uses regulated fireworks after being notified by the commissioner or designee, or by a law enforcement officer or fire official that the item is prohibited for sale or use shall be guilty of a class A misdemeanor for the first offense and a class B felony for the second offense. In addition, the commissioner may revoke the violator’s certificate of competency for a minimum period of 30 consecutive days.

V. Any license holder or certificate holder aggrieved by the action of the commissioner pursuant to this section may appeal pursuant to RSA 541.

2 Permissible Fireworks. RSA 160-C is repealed and reenacted to read as follows:

CHAPTER 160-C

PERMISSIBLE FIREWORKS

160-C:1 Definitions. In this chapter:

I. “Consumer fireworks” means consumer fireworks as defined in 27 C.F.R. section 555.11 and formerly known as class C common fireworks.

II. “Fireworks” means fireworks as defined in 27 C.F.R. section 555.11.

III. “Permissible fireworks” mean consumer fireworks, other than sparklers, reloadable aerial shells, firecrackers, and bottle rockets.

IV. “Retail” means the sale to any consumer or person not engaged in the business of making sales of fireworks.

V. “Sale” or “sell” means to sell, give, or transfer to another, with or without consideration.

160-C:2 Sale of Permissible Fireworks; Penalty.

I. No person shall sell permissible fireworks other than a person who meets all of the following requirements:

(a) Has a federal permit to sell regulated fireworks issued in accordance with Title 18 of the United States Code.

(b) Has a local permit to sell permissible fireworks issued pursuant to RSA 160-C:3.

II. No person shall sell permissible fireworks:

(a) To any person less than 21 years of age; or

(b) To any person who appears to be under the influence of alcohol or drugs.

III. Any person who violates the provisions of this section shall be guilty of a misdemeanor.

160-C:3 Requirements for the Sale of Permissible Fireworks.

I. Any person who desires to sell permissible fireworks shall apply to the municipality in which the permissible fireworks are to be sold. The licensing board of any municipality or, if one does not exist, the governing body may issue a permit to sell permissible fireworks to a person who applies, provided that the person has a valid permit for the sale of fireworks issued pursuant to Title 18 of the United States Code. No permit to sell permissible fireworks shall be issued by the governing body without the prior approval of the police chief, fire chief, and building inspector, if any, of the municipality. The municipality may charge a fee for the permit or application for permit under this section.

II. Only individuals lawfully residing in the United States, or partnerships or limited liability companies organized under the laws of this state or authorized to transact business within the state, or corporations organized under the laws of one of the United States and currently registered to do business in New Hampshire shall be licensed under this chapter.

III. All license applications shall be made in the name of the proposed licensee and shall be signed and sworn to by the proposed licensee. In the case of a partnership, limited liability company, or corporate applicant, the application shall be signed and sworn to by all partners or an officer of the proposed licensee, or in the case of a limited liability company by each member if a natural person, or by a duly appointed representative of the membership if any other person, or by the manager of the limited liability company who must submit a copy of the written authorization of the limited liability company membership to sign the application.

IV. An applicant intending to employ a trade name in the proposed business shall submit evidence with its application which demonstrates that the trade name is currently registered in New Hampshire.

V. A separate license application shall be filed with respect to each place of business sought by a single licensee.

VI. Corporate applicants shall disclose the names and permanent addresses of all directors, officers, and shareholders, except that corporations with more than 20 shareholders may disclose only those persons owning or controlling 5 percent or more of the outstanding shares. Limited liability company applicants shall disclose the names and permanent addresses of all members. Partnership applicants shall disclose the names and addresses of all partners, except that partnerships with more than 20 partners may disclose only those persons who are managing partners and those persons who own or control a partnership share of 5 percent of more. If the principal controlling shareholders, members, or partners are themselves owned or controlled by other persons, then the information required by this paragraph shall also be furnished for each such person until the person or persons with the ultimate legal right to control the applicant’s proposed business have been fully identified. No license shall be issued under this section to any person who has been convicted of a felony, or to any partnership, limited liability company, or corporation when a partner, director, officer, member, or any other person with a controlling interest in the operation of the business has been convicted of a felony.

VII. No licensee shall employ a person under 18 years of age to handle or sell fireworks or a person who has been convicted of any offense involving fireworks or explosives within the past 2 years or who has been found to have violated any fireworks or explosives laws, rules, or regulations within the past 2 years.

VIII. Nothing in this section shall preclude the sale of permissible fireworks to any other person engaged in the business of selling permissible fireworks.

160-C:4 Local Option. Any municipality in the state, by action of its local legislative body or local governing body, may vote to allow or to prohibit, within that municipality, the issuance of permits or licenses to sell permissible fireworks or the display or possession of permissible fireworks. If the municipality has voted to prohibit the issuance of permits or licenses or the display or possession of permissible fireworks prior to the effective date of this section, such decision shall remain in effect unless subsequent action is taken under this section.

160-C:5 Civil Liability. In addition to any other penalties imposed under this chapter, any person who violates the provisions of this chapter shall be liable, in any civil action, to any person for damages resulting from the illegal sale or use of permissible or consumer fireworks, and neither assumption of risk nor contributory negligence shall be a defense for such violator.

160-C:6 Advertising. Any advertisement for the sale of permissible fireworks shall at a minimum contain the words: “Check with your local fire department to see if permissible fireworks are allowed in your community.”

160-C:7 Sales of Permissible Fireworks Allowed; Penalty.

I. Any person who sells permissible fireworks shall post in a conspicuous place on the sales premises a list of all municipalities in the state where the display or possession of permissible fireworks is prohibited.

II. Any person who sells permissible fireworks shall post in a conspicuous place on the sales premises a list of all permissible fireworks that are authorized for retail sale.

III. Any person who violates the provisions of this section shall be guilty of a violation if a natural person, or guilty of a class B misdemeanor if any other person.

160-C:8 Possession and Display of Permissible Fireworks; Penalty.

I. A person who is 21 years of age or older may possess permissible fireworks. A person who is 21 years of age or older may display permissible fireworks on private property with the written consent of the owner or in the owner’s presence, except in a municipality which has voted to prohibit display of permissible fireworks pursuant to RSA 160-C:4.

II. Any person who violates the provisions of this section shall be guilty of a violation if a natural person, or guilty of a class B misdemeanor if any other person.

160-C:9 Distribution of Pamphlet Required. Any person engaged in selling permissible fireworks shall provide to the purchaser a pamphlet detailing the appropriate and safe use of the permissible fireworks being sold.

160-C:10 Transportation. It shall not be unlawful for a person who has legally purchased permissible fireworks to transport them from the point of purchase to a municipality that has not prohibited the possession of permissible fireworks pursuant to RSA 160-C:4.

3 Effective Date. This act shall take effect January 1, 2007.

LBAO

06-2453

11/16/05

HB 1453-FN - FISCAL NOTE

AN ACT relative to fireworks.

FISCAL IMPACT:

      The Judicial Council, Association of Counties, and Department of Safety state this bill may increase state, county, and local expenditures and state revenue by an indeterminable amount in FY 2007 and each year thereafter. There will be no fiscal impact on county and local revenue.

METHODOLOGY:

    The Judicial Council assumes that any cases arising from the enactment of this bill for which the Indigent Defense Fund may be liable will, in the first instance, be handled by the public defender or contract attorney who accepts these cases on a fixed fee basis of $275 per misdemeanor or $756.25 per felony charged. If an assigned counsel attorney must be used, the hourly rate of $60 with a fee cap of $1,000 for a misdemeanor or $3,000 for a felony will apply. If a motion to exceed the fee cap is approved and/or “services other than counsel” are approved, these will also be chargeable to the Indigent Defense Fund. Any charge within the criminal justice system, committed by a juvenile, will be compensated within the flat fee contract system of $275 per case through disposition, plus $206.25 for each and every review hearing following disposition. Assigned counsel will be at the $60 per hour rate with a fee cap of $1,200. The fee cap may be waived upon motion filed with the court and approved in advance. Any case where a defendant has been found guilty may also result in appeals to either the Superior Court or to the Supreme Court which would have a cost implication for Indigent Defense expenditures made by the State. The Council is unable to predict the number of cases which may result from the passage of this bill, and are unable to determine the exact fiscal impact at this time.

    The Association of Counties states this bill to the extent individuals are prosecuted, the county may incur the cost of pre-trial detainment at the County Department of Corrections, as well as the cost of sentenced inmates under the new law. The average annual cost for counties to incarcerate inmates is $21,633.55, however the total exposure to counties would be determined by the number of individuals convicted and sentenced under the new law, which cannot be determined at this time.

                      LBAO

                      06-2453

                      11/16/05

    The Department of Safety, Division of Fire Safety cannot determine the number of violations nor the amounts of any fines that might be imposed by the courts related to the law changes in this bill. Additionally, the Division cannot estimate increases in either general fund expenditures, or expenditures of the Division which would be funded by the Fire and Emergency Medical Services Fund related to the increase in the number of violations. Significant violations related to the added requirements would most likely cause increases in personnel and other related costs. The Department states there may be increases in local government expenditures related to an increased need for enforcement, but they are unable to determine the exact impact at this time.

    The Department of Justice and Judicial Branch state this bill will have no fiscal impact.