2010-891. 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.

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: [phone].

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 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, § 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 § 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.

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 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: [phone].

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

Authority and Issuance

Accordingly, 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.

§ 555.213

[Amended]

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.

Footnotes

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.