20 January 2010

[Federal Register: January 20, 2010 (Volume 75, Number 12)]
[Rules and Regulations]               
[Page 3160-3163]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20ja10-12]                         

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DEPARTMENT OF JUSTICE

Bureau of Alcohol, Tobacco, Firearms, and Explosives

27 CFR Part 555

[Docket No. ATF 15F; AG Order No. 3133-2010]
RIN 1140-AA30

 
Commerce in Explosives--Storage of Shock Tube With Detonators 
(2005R-3P)

AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), 
Department of Justice.

ACTION: Final rule.

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SUMMARY: The Department of Justice is amending the regulations of the 
Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) by allowing 
shock tube to be stored with detonators because these materials when 
stored together do not pose a mass detonation hazard. Shock tube is a 
small diameter plastic laminate tube coated with a very thin layer of 
explosive material. When initiated, it transmits a low energy wave from 
one point to another. The outer surface of the tube remains intact 
during and after functioning.

DATES: This rule is effective March 22, 2010.

FOR FURTHER INFORMATION CONTACT: James P. Ficaretta, Enforcement 
Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and 
Explosives, U.S. Department of Justice, 99 New York Avenue, NE., 
Washington, DC 20226; telephone: (202) 648-7094.

SUPPLEMENTARY INFORMATION:

I. Background

    ATF is responsible for implementing Title XI, Regulation of 
Explosives (18 United States Code (U.S.C.) chapter 40), of the 
Organized Crime Control Act of 1970. One of the stated purposes of the 
Act is to reduce the hazards to persons and property arising from 
misuse and unsafe or insecure storage of explosive materials. Under 
section 847 of title 18, U.S.C., the Attorney General ``may prescribe 
such rules and regulations as

[[Page 3161]]

he deems reasonably necessary to carry out the provisions of this 
chapter.'' Regulations that implement the provisions of chapter 40 are 
contained in title 27, Code of Federal Regulations (CFR), part 555 
(``Commerce in Explosives'').

II. Notice of Proposed Rulemaking

    On January 29, 2003, ATF published in the Federal Register a notice 
of proposed rulemaking (NPRM) soliciting comments from the public and 
industry on a number of proposals to amend the regulations in part 555 
(Notice No. 968, 68 FR 4406).\1\ ATF issued the NPRM, in part, pursuant 
to the Regulatory Flexibility Act (RFA), which requires an agency to 
review, within ten years of publication, rules for which an agency 
prepared a final regulatory flexibility analysis addressing the impact 
of the rule on small businesses or other small entities. Notice No. 968 
proposed amendments to the regulations that were initiated by ATF and 
amendments proposed by members of the explosives industry. In 
particular, ATF proposed to amend the regulations regarding the storage 
of shock tube. In general, Sec.  555.213(b) provides that detonators 
are not to be stored in the same magazine with other explosive 
materials. However, in a type 4 magazine, detonators that will not mass 
detonate may be stored with electric squibs, safety fuse, igniters, and 
igniter cord. ATF proposed to amend Sec.  555.213(b) to allow shock 
tube to be stored in a type 4 storage magazine with detonators that 
will not mass detonate because these materials when stored together do 
not pose a mass detonation hazard.
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    \1\ The regulations previously codified in 27 CFR part 55 were 
designated as part 555 in 2003 in connection with the transfer of 
ATF to the Department of Justice.
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    The comment period for Notice No. 968, initially scheduled to close 
on April 29, 2003, was extended until July 7, 2003, pursuant to ATF 
Notice No. 2 (68 FR 37109, June 23, 2003). ATF received approximately 
1,640 comments in response to Notice No. 968. This final rule addresses 
only one of the subjects included in Notice No. 968, the proposal 
regarding the storage of shock tube. The remaining proposals made in 
Notice No. 968 may be addressed separately.

III. Analysis of Comments and Decision

    Sixty-one (61) comments addressed ATF's proposal to allow shock 
tube to be stored in a type 4 storage magazine with detonators that 
will not mass detonate. One commenter objected to all the proposed 
amendments in Notice No. 968 and expressed specific concerns with 
respect to certain proposals. However, the commenter did not 
specifically address ATF's proposal relating to the storage of shock 
tube.
    Fifty-six (56) commenters offered general support for ATF's 
proposal, while four commenters expressed specific support for the 
proposed amendment.
    As stated in its comment, the Institute of Makers of Explosives 
(IME) represents United States manufacturers of explosives, as well as 
other companies that distribute explosives or provide related services. 
According to IME, over 2.5 million metric tons of explosives are used 
annually in the United States, of which IME member companies produce 
over 95 percent, which have an estimated value in excess of $1 billion 
annually. IME supported the proposed amendment, stating that it has 
made several requests to allow shock tube to be stored with detonators, 
and highlighting the fact that shock tube manufactured with a detonator 
attached is currently permitted to be stored with detonators.
    The Colorado Division of Oil and Public Safety, which is the State 
of Colorado's regulatory enforcement authority for the manufacturing, 
sale, transportation, storage, and use of commercial explosives in non-
mining related operations, supported the proposed amendment and stated 
it was ``long overdue.''
    The Alliance of Special Effects & Pyrotechnic Operators, Inc., an 
organization of special effects professionals who work in motion 
pictures, television, and on stage, also expressed support for the 
proposed amendment, characterizing it as ``reasonable in view of the 
nature of shock tubing.''
    A federally licensed explosives dealer specifically supported the 
proposed amendment and asserted that it does not pose a safety risk.
    Accordingly, this final rule adopts without change the proposed 
amendment with respect to shock tube.

How This Document Complies With the Federal Administrative Requirements 
for Rulemaking

A. Executive Order 12866

    This rule has been drafted and reviewed in accordance with 
Executive Order 12866, Regulatory Planning and Review section 1(b). The 
Department of Justice has determined that this rule is not a 
``significant regulatory action'' under section 3(f) of Executive Order 
12866 and accordingly this rule has not been reviewed by the Office of 
Management and Budget. This rule will not have an annual effect on the 
economy of $100 million, nor will it adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health, public safety, or State, local, or 
tribal governments or communities. Accordingly, this rule is not an 
``economically significant'' rulemaking as defined by Executive Order 
12866.
    Further, the Department has assessed both the costs and benefits of 
this rule as required by Executive Order 12866, section 1(b)(6), and 
has made a reasoned determination that there will be no financial costs 
incurred by explosives industry members associated with this final 
rule. Comments received in response to the notice of proposed 
rulemaking did not indicate any concern regarding the financial impact 
of the implementation of this aspect of the proposed rule. The 
Department believes any financial impact will benefit the explosives 
industry by reducing the number of explosives magazines used 
exclusively to store shock tube. The final rule will provide explosives 
industry members with the option to consolidate detonators and shock 
tube into fewer explosive storage magazines, therefore alleviating the 
additional cost of maintaining separate magazines for each explosive 
product. ATF estimates the average cost for a new type 4 magazine (4 
feet x 4 feet x 4 feet) at $3,000. Not only will the final rule reduce 
the overall cost incurred by industry members because of the 
requirement to maintain fewer magazines, but explosives industry 
members will increase savings by decreasing the number of employee-
hours spent maintaining magazines that are used solely for the storage 
of shock tube.
    According to the most recent information from the U.S. Bureau of 
Labor Statistics, explosives workers, ordnance handling experts, and 
blasters make an average hourly wage of $20.68. ATF estimates that an 
average of \1/2\ hour per week is spent maintaining each separate 
magazine. Magazine maintenance includes but is not limited to security, 
housekeeping, and repairs. ATF estimates that explosives industry 
members eliminating one magazine will incur an annual yearly savings of 
approximately $500.
    Many non-electric detonators are currently manufactured with shock 
tube attached as an integral part of the initiation system. ATF has 
determined that non-mass detonating detonators that are affixed with 
shock tube as an integral part of the initiation system can be stored 
in a type 4 magazine, as long

[[Page 3162]]

as the explosives remain in a non-mass detonating packaged 
configuration. This final rule will provide consistency to the 
enforcement of federal law by allowing individuals or companies to 
store shock tube with non-mass detonating detonators regardless of 
whether they were integrated during the manufacturing process. 
Additionally, ATF has consistently approved variance requests from 
explosives industry members for the storage of shock tube with non-mass 
detonating detonators in a type 4 magazine because it does not pose a 
mass detonation hazard.
    Until ATF implements this final rule relating to shock tube, 
explosives industry members will continue to incur unnecessary costs by 
not being able to utilize all available storage space in each 
explosives storage magazine and having to maintain additional 
magazines. Further, this final rule will alleviate these unnecessary 
burdens on individuals or businesses wishing to establish new 
explosives companies. ATF believes this final rule will provide current 
and future explosives industry members with greater flexibility in 
their explosives storage operations without mandating costly changes in 
their current or proposed operating procedures.

B. Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the Federal Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, the Attorney General has determined that this 
regulation does not have sufficient federalism implications to warrant 
the preparation of a federalism summary impact statement.

C. Executive Order 12988

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 605(b)) requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. The Attorney General has reviewed this regulation and, 
by approving it, certifies that this rule will not have a significant 
economic impact on a substantial number of small entities.
    Individuals or companies storing shock tube will not be affected 
adversely by this final rule because it allows these entities to 
voluntarily make modifications to their current explosive operations. 
There will be no mandated changes as a result of this final rule. 
Therefore, any costs associated with the implementation of the final 
rule will be incurred at the discretion of each individual explosives 
industry member.
    Since 2004, there have been 24 instances in which explosives 
industry members were storing shock tube in the same magazine with 
detonators, which is currently a violation of the federal explosives 
regulations. Those 24 instances involved a total of approximately 
470,650 feet of shock tube. Twenty of the 24 instances involved 
companies that ATF would classify as small- or medium-sized businesses. 
In each instance, the explosives industry member was required to 
utilize employee-hours to move the shock tube into another magazine. Of 
these 20 small- or medium-sized companies, 4 were required to attend a 
warning conference with ATF officials and 6 received an ATF recall 
inspection, in part because of the violation received for the improper 
storage of shock tube with detonators. Each industry member was 
required to dedicate company resources, including employee work hours, 
to attend the required meetings or be present during another ATF 
inspection.
    As mentioned earlier in the preamble, the most recent information 
from the U.S. Bureau of Labor Statistics, explosives workers, ordnance 
handling experts, and blasters make an average hourly wage of $20.68. 
The final rule will eliminate the need for small- or medium-sized 
entities to utilize employee hours during warning conferences and 
recall inspections that are initiated as a result of these industry 
members storing shock tube and detonators in the same magazine.
    Until ATF implements this final rule with respect to shock tube, 
explosives industry members, including small-sized explosives 
companies, will continue to incur costs associated with the unnecessary 
movement and separate storage requirements of shock tube due to current 
explosive regulations. Further, implementation of this final rule will 
alleviate these unnecessary burdens on individuals or businesses 
wishing to establish new explosives companies, some of which will be 
small entities. ATF believes this final rule will provide current and 
future explosives industry members with greater flexibility in their 
explosives storage operations without mandating costly changes in their 
current or proposed operating procedures.

E. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

F. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

G. Paperwork Reduction Act

    This final rule does not impose any new reporting or recordkeeping 
requirements under the Paperwork Reduction Act.

Disclosure

    Copies of the notice of proposed rulemaking, all comments received 
in response to the NPRM, and this final rule will be available for 
public inspection by appointment during normal business hours at: ATF 
Reading Room, Room 1E-063, 99 New York Avenue, NE., Washington, DC 
20226; telephone: (202) 648-7080.

Drafting Information

    The author of this document is James P. Ficaretta; Enforcement 
Programs and Services; Bureau of Alcohol, Tobacco, Firearms, and 
Explosives.

List of Subjects in 27 CFR Part 555

    Administrative practice and procedure, Authority delegations, 
Customs duties and inspection, Explosives, Hazardous materials, 
Imports, Penalties, Reporting and recordkeeping requirements, Safety, 
Security measures, Seizures and

[[Page 3163]]

forfeitures, Transportation, and Warehouses.

Authority and Issuance

0
Accordingly, for the reasons discussed in the preamble, 27 CFR Part 555 
is amended as follows:

PART 555--COMMERCE IN EXPLOSIVES

0
1. The authority citation for 27 CFR Part 555 continues to read as 
follows:

    Authority:  18 U.S.C. 847.


Sec.  555.213  [Amended]

0
2. Section 555.213 is amended by adding ``shock tube,'' after ``safety 
fuse,'' in paragraph (b)(1).

    Dated: January 13, 2010.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2010-891 Filed 1-19-10; 8:45 am]
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