03-23093. Implementation of the Safe Explosives Act, Title XI, Subtitle C of Public Law 107-296-Delivery of Explosive Materials by Common or Contract Carrier

AGENCY:

Bureau of Alcohol, Tobacco, Firearms and Explosives; Department of Justice.

ACTION:

Interim final rule with request for comments.

SUMMARY:

The Department of Justice is amending current regulations of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to remove the requirement that common or contract carriers taking possession of explosive materials for delivery to a licensee or permittee complete ATF Form 5400.8 (Explosives Delivery Record) prior to taking possession of explosive materials, regardless of whether they are hired by the distributor or by the distributee. ATF believes that this requirement is unduly burdensome and unnecessary. Furthermore, ATF does not believe that the elimination of this form will result in diversion of explosive materials to criminal or terrorist use. ATF will continue to require distributors of explosive materials to verify the identity of persons accepting possession of explosive materials for common or contract carriers, and will require distributors to record the name of the common or contract carrier and the full name of the driver in their permanent records.

The interim rule will remain in effect until superseded by final regulations.

DATES:

Effective date: This interim rule is effective September 11, 2003.

Comment date: Comments must be submitted on or before October 14, 2003.

ADDRESSES:

Send written comments to: James P. Ficaretta, Program Manager; Room 5150; Bureau of Alcohol, Tobacco, Firearms and Explosives; P.O. Box 50221; Washington, DC 20091-0221; ATTN: ATF No. 2. Written comments must include your mailing address and be signed, and may be of any length.

E-mail comments may be submitted to: [e-mail]. E-mail comments must contain your name, mailing address, and e-mail address. They must also reference this document number, as noted above, and be legible when printed on 81/2″ x 11″ paper. ATF will treat e-mail as originals and ATF will not acknowledge receipt of e-mail. See the Public Participation section at the end of the SUPPLEMENTARY INFORMATION section for requirements for submitting written comments by facsimile.

FOR FURTHER INFORMATION CONTACT:

James P. Ficaretta; Firearms, Explosives and Arson; Bureau of Alcohol, Tobacco, Firearms and Explosives; U.S. Department of Justice; 650 Massachusetts Avenue, NW., Washington, DC 20226, telephone [phone].

SUPPLEMENTARY INFORMATION:

Background

On March 20, 2003, ATF published in the Federal Register an interim final rule (68 FR 13768) implementing the Safe Explosives Act (SEA) (Title XI, Subtitle C of Public Law 107-296). The SEA, among other things, requires that all persons receiving explosives on and after May 24, 2003, obtain a Federal license or permit, and creates a new type of permit, the “limited permit.” Except as otherwise provided, the interim rule became effective upon the date of publication in the Federal Register.

Delivery of Explosive Materials by Common or Contract Carrier

In the preamble of the interim rule, ATF stated that on and after May 24, 2003, all common or contract carriers taking possession of explosive materials for delivery to a Federal explosive licensee or permittee (including a limited permittee) must complete an ATF Form 5400.8 (Explosives Delivery Record) prior to taking possession of the explosive materials. Specifically, ATF required common or contract carriers to document and certify certain identifying information. ATF also required distributors to verify the identity of the driver and to provide information regarding the distributee. This form is required only when delivery occurs by common or contract carrier and is not dependent on whether the carrier is hired by the distributor or distributee. Regulations that implement these requirements are contained in 27 CFR 555.103(b)(3) and 555.105(b)(6)(iii) and (iv). The form is not required when employees of distributors or distributees make delivery.

The primary purpose of ATF Form 5400.8 is to require verification of the identity of employees of common or contract carriers taking possession of explosive materials. 68 FR at 13771. Under ATF's longstanding position since 1970, employees of common or contract carriers have been subject to prohibitions under 18 U.S.C. 842(i) proscribing the transportation, shipment, receipt, or possession of explosives by persons convicted of or under indictment for felony offenses, fugitives, substance abusers, and mental defectives. The SEA, among other things, expanded these categories of prohibited persons to include aliens (with limited exceptions), dishonorable dischargees, and renunciants. However, there is no authority in the SEA for ATF to conduct background checks on employees of common or contract carriers to ensure that such persons are not, for example, convicted felons, fugitives, or aliens. ATF believes that, absent background checks, ATF should collect information to properly document and verify identities of commercial drivers to reduce the potential for diversion to criminal or terrorist use.

On May 5, 2003, shortly after publication of ATF's interim rule, the Department of Transportation (DOT) and the Department of Homeland Security promulgated three interim final rules generally exempting persons engaged in the commercial transportation of explosives from the application of 18 U.S.C. 842(i) while they are engaged in such transportation by motor carrier, water, and air. See 68 FR 23832 (Research and Special Programs Administration, DOT), 23844 (Federal Motor Carrier Safety Administration, DOT), 23852 (Transportation Security Administration (TSA), DHS) (to be codified at 49 CFR). On June 9, 2003, DOT and TSA also published a notice that extended this exemption to persons engaged in the commercial transportation of explosives via rail (68 FR 34470).

Additionally, on February 3, 2003, TSA, then an agency of DOT, promulgated regulations effectively allowing aliens to transport, ship, receive, and possess explosives incident to and in connection with the commercial transport of explosives by motor carrier or rail into the United States from Canada. This rule generally exempted such persons from the general prohibitions of 18 U.S.C. 842(i)(5). See 68 FR 6083 (February 6, 2003) (to be codified at 49 CFR Part 1572).

As a consequence, upon publication of the DOT and TSA rules, certain employees of motor, water, air, and rail carriers are no longer subject to 18 U.S.C. 842(i) while they are engaged in the commercial transportation of explosives. Rather, these employees are subject to DOT and TSA security threat assessment standards. To evaluate relevant security threat assessments, DOT and TSA now collect specific information to ensure that employees of common or contract carriers transporting explosives do not pose a security threat. Thus, ATF finds that there is a significantly diminished need to collect similar information via the ATF Form 5400.8 to ensure that explosives are not placed in the hands of prohibited persons for possible diversion to criminal or terrorist use.

In addition, while not explicitly stated in the interim rule, ATF also collects certain information on ATF Form 5400.8 to enable tracing of explosives deliveries by a distributor to a common or contract carrier. For example, if a distributee reports a shipment of explosives as lost or stolen, ATF can request the ATF Form 5400.8 from the distributor in order to properly identify the trucking company and the name of the specific employee who initially picked up the explosives. ATF believes that this information, documenting the movement of explosives from the distributor to the carrier, assists in reducing possible diversion of explosives to criminal or terrorist use.

Since 1971, ATF has imposed certain identification requirements upon common or contract carrier employees. For example, ATF has required documentation of the name, resident address, and identifying information of common or contract carrier employees. ATF also has required information related to the employee's driver's license number and identification document. ATF has provided the employees the option, however, to omit the latter information if the driver was “known” to the distributor. In the interim rule, ATF strengthened these requirements to ensure that the driver's identity in each case was properly and adequately documented and verified. ATF believes that this additional information further assists in documenting explosives movement and reduces possible criminal or terrorist diversion.

Based on preliminary comments on the initial interim rule, ATF has concluded that some of the information required on the ATF Form 5400.8 is not needed to trace delivery of explosives to a common or contract carrier. In light of this conclusion, as well as the recent DOT/TSA interim rules, ATF finds that there is no longer a significant reason to collect all of the information required by the ATF Form 5400.8. ATF will continue to require that distributors verify the identity of persons accepting possession of explosive materials for common or contract carriers, and record the name of the common or contract carrier and the full name of the driver. However, ATF will no longer require that this information be recorded on the ATF Form 5400.8. Instead, ATF will allow distributors to record the information in their permanent records. Because all pertinent information will be recorded in a distributor's permanent records, ATF does not believe that the elimination of this form will result in diversion of explosive materials to criminal or terrorist use.

Distributors will be required to verify the identity of the person accepting possession for the common or contract carrier by examining such person's valid, unexpired driver's license issued by any State, Canada, or Mexico. Distributors must record the name of the common or contract carrier and the full name of the driver in the distributor's permanent records that are required by 27 CFR 555.121. Current regulations governing required records also mandate the recording of, among other things, the date of disposition. See, e.g., 27 CFR 555.124(c)(1).

In the event of an ATF investigation of lost or stolen explosives, ATF has the statutory right to examine the permanent records of Federal explosives licensees and permittees without a warrant under 18 U.S.C. 843(f). Requiring distributors to record the full name of the driver and the name of the common or contract carrier in their permanent records will enable ATF to conduct a trace of explosive materials quickly and efficiently. Therefore, eliminating the Form 5400.8 will decrease the burden on distributors and common and contract carriers, yet the additional information required by that form still will be collected.

Discussion of This Interim Final Rule

This interim final rule removes the procedures set forth in 27 CFR 555.103(b)(3) and 555.105(b)(6)(iii) and (iv), which require transactions among licensees, user permittees, and limited permittees, on and after May 24, 2003, involving delivery of explosive materials by a common or contract carrier, to utilize the ATF Form 5400.8, Explosives Delivery Record. Specifically, this interim final rule removes the procedures related to the use of Form 5400.8, thereby removing any requirement to use the form in any and all explosives transactions on and after May 24, 2003. This interim final rule requires that distributors of explosive materials verify the identity of the person accepting possession for the common or contract carrier by examining such person's valid unexpired driver's license issued by any State, Canada, or Mexico. In addition, distributors must record in the permanent records they are required to keep pursuant to 27 CFR 555.121 the name of the common or contract carrier and the full name of the driver. This rule also provides related clarification to § 555.103(b)(2)(ii).

This rule does not revise provisions related to the required use of ATF Form 5400.8 as described in 27 CFR 555.103(a)(1)(iv) (addressing use of the form in transactions among licensees and permittees prior to May 24, 2003) and in 27 CFR 555.105(a)(6) (addressing use of the form in distributions to nonlicensees and nonpermittees prior to May 24, 2003). The reasons for this are as follows:

(1) As ATF has explained in its internet postings, immediately after January 24, 2003, ATF suspended until further notice mandatory use of the revised ATF Form 5400.8, Explosives Delivery Record. ATF's internet posting required that, until May 24, 2003, the old form (in use since 1998) continue to be used in transactions as described on the form. See http://www.atf.gov/​forms/​pdfs/​f54008old.pdf (ATF F 5400.8 (7-98)).

(2) On and after May 24, 2003, the new ATF Form 5400.8 was required to be used in transactions as described herein. See http://www.atf.gov/​forms/​pdfs/​f54008may2003.pdf (ATF Form 5400.8, Revised May 2003).

(3) Upon the publication date of this rule, the form is not required in any transaction whatsoever.

Licensees and permittees who have completed ATF Forms 5400.8 prior to the effective date of this interim final rule should continue to maintain them as part of their permanent records in accordance with section 555.121.

How This Document Complies With the Federal Administrative Requirements for Rulemaking

A. Executive Order 12866

The Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives has determined that this rule is not a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Therefore, a Regulatory Assessment is not required. Accordingly, this rule has not been reviewed by the Office of Management and Budget.

B. Executive Order 13132

This rule will not have substantial direct effects on the States, on the relationship between the National 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: Civil Justice Reform

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

D. Administrative Procedure Act (APA)

Because this rule eliminates the use of a particular form while maintaining the requirement that most of the information covered by the form be collected and retained elsewhere, its only effect is to lessen a small administrative burden. Therefore, the Attorney General has found it to be unnecessary and contrary to the public interest to provide notice and seek prior public comment regarding this rule. See 5 U.S.C. 553(b)-(c). Furthermore, because this rule merely constitutes relief from a restriction on certain transactions, it is not subject to the delayed-effective-date provision of the APA. See 5 U.S.C. 553(d)(1).

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the head of 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. Although it removes a requirement that a government form be prepared and submitted, most of this information still must be recorded in the distributor's permanent records.

F. 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 enterprises to compete with foreign-based enterprises in domestic and export markets. A copy of this interim rule, however, has been provided to the Small Business Administration for its review.

G. 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.

H. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, Pub. L. 104-13, all Departments are required to submit to the Office of Management and Budget (OMB), for review and approval, any reporting requirements inherent in a final/interim rule. The collections of information in this regulation have been approved by OMB under control numbers 1140-0079 and 1140-0075. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB. The collections of information in this regulation are in 27 CFR 555.103 and 555.105. This rule decreases existing recordkeeping requirements for distributors of explosive materials and common and contract carriers by abolishing the use of ATF Form 5400.8, by limiting the information that distributors are required to record to the name of the common or contract carrier and the full name of the driver, and by allowing distributors to record such information in their permanent records rather than on a separate ATF form.

Public Participation

ATF is requesting comments on the interim regulations from all interested persons. ATF is also specifically requesting comments on the clarity of this interim rule and how it could be made easier to understand.

Comments received on or before the closing date will be carefully considered. Comments received after that date will be given the same consideration if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before the closing date.

ATF will not recognize any material in comments as confidential. Comments may be disclosed to the public. Any material that the commenter considers to be confidential or inappropriate for disclosure to the public should not be included in the comment. The name of the person submitting a comment is not exempt from disclosure.

You may submit written comments by facsimile transmission to [phone]. Facsimile comments must:

• Be legible;
• Include your mailing address;
• Reference this document number;
• Be 81/2″ x 11″ in size;
• Contain a legible written signature; and
• Be not more than five pages long.

ATF will not acknowledge receipt of facsimile transmissions. ATF will treat facsimile transmissions as originals.

Any interested person who desires an opportunity to comment orally at a public hearing should submit his or her request, in writing, to the Director within the 30-day comment period. The Director, however, reserves the right to determine, in light of all circumstances, whether a public hearing is necessary.

Disclosure

Copies of this interim rule and the comments received will be available for public inspection by appointment during normal business hours at: ATF Reference Library, Room 6480, 650 Massachusetts Avenue, NW., Washington, DC 20226, telephone [phone].

Regulation Identification Number

A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in the Federal Register in April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

Drafting Information

The author of this document is James P. Ficaretta; Firearms, Explosives and Arson; 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 forfeitures
• Transportation, and Warehouses

Authority and Issuance

For the reasons discussed in the preamble, 27 CFR Part 555 is amended as follows:

PART 555—COMMERCE IN EXPLOSIVES

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

Authority: 18 U.S.C. 847.

2. Section 555.103 is amended by revising the last sentence in paragraph (b)(2)(ii) and by revising paragraph (b)(3) to read as follows:

§ 555.103

Transactions among licensees/permittees and transactions among licensees and holders of user permits.

* * * * *

(b) * * *

(2) * * *

(ii) * * * Except as provided in paragraph (b)(3) of this section, in all instances the distributor must verify the identity of the distributee, or the employee of the distributee accepting possession of explosive materials on behalf of the distributee, by examining an identification document (as defined in § 555.11) before relinquishing possession.

* * * * *

(3) Delivery of explosive materials by common or contract carrier. When a common or contract carrier will transport explosive materials from a distributor to a distributee who is a licensee or holder of a user permit, the distributor must take the following actions before relinquishing possession of the explosive materials:

(i) Verify the identity of the person accepting possession for the common or contract carrier by examining such person's valid, unexpired driver's license issued by any State, Canada, or Mexico; and

(ii) Record the name of the common or contract carrier (i.e., the name of the driver's employer) and the full name of the driver. This information must be maintained in the distributor's permanent records in accordance with § 555.121.

* * * * *

3. Section 555.105 is amended by revising paragraphs (b)(6)(iii) and (b)(6)(iv) to read as follows:

§ 555.105

Distributions to nonlicensees, nonpermittees, and limited permittees.

* * * * *

(b) * * *

(6) * * *

(iii) Delivery by common or contract carrier hired by the distributor. Where a common or contract carrier hired by the distributor will transport explosive materials from the distributor to a holder of a limited permit:

(A) The limited permittee must, prior to delivery of the explosive materials, complete the appropriate section on Form 5400.4, affix to the Form 5400.4 one of the six IPECs he has been issued, and provide the form to the distributor in person or by mail.

(B) The distributor must, before relinquishing possession of the explosive materials to the common or contract carrier:

(1) Verify the identity of the person accepting possession for the common or contract carrier by examining such person's valid, unexpired driver's license issued by any State, Canada, or Mexico; and

(2) Record the name of the common or contract carrier (i.e., the name of the driver's employer) and the full name of the driver. This information must be maintained in the distributor's permanent records in accordance with § 555.121.

(C) At the time of delivery of the explosive materials, the common or contract carrier, as agent for the distributor, must verify the identity of the person accepting delivery on behalf of the distributee, note the type and number of the identification document (as defined in § 555.11) and provide this information to the distributor. The distributor must enter this information in the appropriate section on Form 5400.4.

(iv) Delivery by common or contract carrier hired by the distributee. Where a common or contract carrier hired by the distributee will transport explosive materials from the distributor to a holder of a limited permit:

(A) The limited permittee must, prior to delivery of the explosive materials, complete the appropriate section on Form 5400.4, affix to the Form 5400.4 one of the six IPECs he has been issued, and provide the form to the distributor in person or by mail.

(B) Before the delivery at the distributor's premises to the common or contract carrier who will transport explosive materials to the holder of a limited permit, the distributor must:

(1) Verify the identity of the person accepting possession for the common or contract carrier by examining such person's valid, unexpired driver's license issued by any State, Canada, or Mexico; and

(2) Record the name of the common or contract carrier (i.e., the name of the driver's employer) and the full name of the driver. This information must be maintained in the distributor's permanent records in accordance with § 555.121.

* * * * *

Dated: September 5, 2003.

John Ashcroft,

Attorney General.