[Federal Register Volume 61, Number 200 (Tuesday, October 15, 1996)]
[Proposed Rules]
[Pages 53688-53692]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25817]
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DEPARTMENT OF THE TREASURY
Bureau of Alcohol, Tobacco and Firearms
27 CFR Part 55
(Notice No. 841)
RIN: 1512-AB55
Commerce in Explosives
AGENCY: Bureau of Alcohol, Tobacco and Firearms, Treasury.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Bureau of Alcohol, Tobacco and Firearms (ATF) proposes to
amend the explosives regulations to require the explosives industry to
notify local law enforcement officials and fire departments of sites
where explosives are stored or manufactured, increase license and
permit fees, eliminate the manufacturer-limited license, amend the
definitions of ``fireworks'', ``fireworks nonprocess building'' and
``highway'', and amend the American Table of Distances to conform with
the explosives industry's latest revisions. The intended effect of
these changes is to protect public safety, eliminate duplication with
respect to licensing requirements, and to update references and
definitions to reflect current industry and U.S. Department of
Transportation terminology.
DATES: Written comments must be received by January 13, 1997.
ADDRESSES: Send written comments to: Chief, Firearms and Explosives
Operations Branch, Bureau of Alcohol, Tobacco and Firearms, 650
Massachusetts Avenue, N.W., Washington, DC 20091-0221. ATTN: Notice No.
841.
FOR FURTHER INFORMATION CONTACT: Gail Hosey, Firearms and Explosives
Regulatory Division, Bureau of Alcohol, Tobacco and Firearms, 650
Massachusetts Avenue, NW, Washington, DC 20226, (202-927-8310).
SUPPLEMENTARY INFORMATION: The Bureau of Alcohol, Tobacco and Firearms
(ATF) and the explosives industry have become increasingly concerned
about the number and severity of accidental explosions that have
occurred at sites where explosives are stored without the knowledge of
State and local officials. Serious explosions have occurred that
resulted in multiple deaths and injuries.
In 1988, 6 firefighters were killed as a result of fighting a fire
at a construction site where explosives were stored and had not been
reported. ATF is concerned with the safety of emergency response
personnel responding to fires on sites where
[[Page 53689]]
explosives are stored. In discussions with industry representatives on
this subject, the Institute of Makers of Explosives (IME), an industry
organization concerned with safety, requested that ATF incorporate two
provisions in the regulations that are contained in IME safety
publications. The IME recommends that ATF require anyone who stores
explosive materials to notify local law enforcement officials and fire
departments of the type, magazine capacity, and location of each site
where explosive materials are stored. ATF believes that this
information is necessary for the safety of emergency response
personnel. Accordingly, this notice proposes the addition of this
notification requirement to the regulations in Part 55. The proposed
regulations will require all persons who store explosives to notify
local law enforcement officials and fire departments orally before the
end of the day on which storage of the explosive materials commenced
and in writing within 48 hours from the time such storage commenced.
This requirement would not apply to persons who merely use but are not
subject to the storage requirements of the explosives regulations.
Under 18 U.S.C. 842(j), the Secretary of the Treasury has the
authority to issue regulations governing the storage of explosive
materials. Section 842(j) further provides that in promulgating such
regulations, the standards of safety and security recognized in the
explosives industry shall be taken into consideration.
Section 846, Title 18, U.S.C., gives the Secretary the authority to
inspect the site of any accident or fire in which there is reason to
believe that explosive materials were involved so that precautions may
be taken to prevent similar accidents from occurring. This provision
gives the Secretary the authority to issue regulations intended to help
prevent accidents involving explosives.
Finally, section 847, Title 18, U.S.C., gives the Secretary the
authority to prescribe regulations as he deems reasonably necessary to
carry out the provisions of Chapter 40, Title 18.
ATF proposes to increase explosives license and permit fees to $200
for each license and $100 for each permit. In a report dated September
29, 1995, the U.S. Department of the Treasury, Office of Inspector
General (OIG) found that ATF had not raised the explosives license and
permit fees since the enactment of the Organized Crime Control Act of
1970. In order to defray the cost of administering the program and to
ensure consistency with licensing fees charged by State and local
governments, the OIG recommended that ATF raise the fees to the maximum
amount permitted. ATF concurs with the recommendation and proposes that
the license and permit fees be raised accordingly. Under 18 U.S.C.
843(a), the Secretary of the Treasury has the authority to set the
license or permit fee in an amount not to exceed $200.
ATF also proposes to amend the regulations to eliminate the
manufacturer-limited license. Under current regulations, the
manufacturer-limited license allows an individual to engage in the
business of manufacturing explosives materials for his own use and not
for sale or distribution. The manufacturer-limited license is only
valid for a period of 30-days from the date of issuance and is not
renewable. Activities covered by this license are also covered by a
manufacturer's license that is valid for a period of three years and is
renewable. ATF has not issued any manufacturer-limited licenses in the
last three years and, therefore, ATF has determined that this category
of license is unnecessary.
ATF also proposes to amend the definitions of ``highway'' and
``fireworks'' and change the names of ``common fireworks'' to
``consumer fireworks'' and ``special fireworks'' to ``display
fireworks'' and amend their definitions. These definitions are being
amended to conform to current industry terminology and to incorporate
the United Nations (UN) identification numbers for fireworks as
described in the U.S. Department of Transportation regulations at 49
CFR 172.101. The definition of ``fireworks nonprocess building'' is
being amended to eliminate the unnecessary reference to fireworks plant
warehouse. ``Fireworks plant warehouse'' is already defined in the
regulations.
In June 1991, the American Table of Distances was revised by the
IME. ATF proposes to substantially adopt the American Table of
Distances as revised by the IME. The IME revised the table to clarify
the header for public highways and to change the minimum amount of
explosives subject to the table from 2 pounds to any quantity of
explosives.
Executive Order 12866
It has been determined that this proposed regulation is not a
significant regulatory action as defined by Executive Order 12866.
Therefore, a regulatory assessment is not required.
Regulatory Flexibility Act
It is hereby certified that these proposed regulations will not
have a significant economic impact on a substantial number of small
entities. Accordingly, a regulatory flexibility analysis is not
required. These proposed regulations provide clarification and
consistency with industry terminology. In addition, the proposed
increases in license and permit fees are within the maximum amounts
provided by the statute. Further, the burden placed on licensees and
permittees for the collection and disclosure of information to local
law enforcement authorities is minimal.
Paperwork Reduction Act
The collection of information contained in this notice has been
submitted to the Office of Management and Budget for review in
accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3504(h)). Comments on the collection of information should be sent to
the Office of Management and Budget, Attention: Desk Officer for the
Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms,
Office of Information and Regulatory Affairs, Washington, DC, 20503,
with copies to the Chief, Document Services Branch, Room 3450, Bureau
of Alcohol, Tobacco and Firearms, 650 Massachusetts Avenue, NW,
Washington, DC 20226.
The collection of information in this proposed regulation is in 27
CFR 55.201(f). This information is required to inform local law
enforcement officials and fire departments of sites where explosives
are stored or manufactured. This information will be used to protect
emergency response personnel called to fire scenes where explosives may
be stored. The likely respondents are Federal licensees and permittees
who store or manufacture explosive materials. Estimated total annual
reporting burden per respondent: 1.5 hours. Estimated number of
respondents: 10,057. Estimated annual frequency of responses: 2.
Public Participation
ATF requests comments on the notice of proposed rulemaking from all
interested persons. 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 which 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
[[Page 53690]]
submitting a comment is not exempt from disclosure.
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 90-day comment period. The Director, however,
reserves the right to determine, in light of all circumstances, whether
a public hearing is necessary.
Drafting Information
The author of this document is Gail Hosey, Firearms and Explosives
Regulatory Division, Bureau of Alcohol, Tobacco and Firearms.
List of Subjects in 27 CFR Part 55
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
27 CFR Part 55, Commerce in Explosives, is amended as follows:
Part 55-Commerce in Explosives
Paragraph 1. The authority citation for 27 CFR part 55 is amended
to read as follows:
Authority: 18 U.S.C. 842, 846, 847.
Par. 2. Section 55.11 is amended by removing the term ``Common
Fireworks'' and adding in its place ``Consumer Fireworks'', by removing
the term ``Special Fireworks'' and adding in its place ``Display
Fireworks'', by placing the new terms in appropriate alphabetical
order, and by revising the definitions of ``Consumer Fireworks'',
``Display Fireworks'', ``Fireworks'', ``Fireworks nonprocess
building'', ``Highway'', and ``Salute'' to read as follows:
Sec. 55.11 Meaning of terms.
* * * * *
Consumer fireworks. Any small firework device designed to produce
visible effects by combustion and which must comply with the
construction, chemical composition, and labeling regulations of the
U.S. Consumer Product Safety Commission, as set forth in title 16, Code
of Federal Regulations, parts 1500 and 1507. Some small devices
designed to produce audible effects are included, such as whistling
devices, ground devices containing 50 mg or less of explosive
materials, and aerial devices containing 130 mg or less of explosive
materials. Consumer fireworks are classified as fireworks UN0336,
UN0337, UN0431, or UN0432 by the U.S. Department of Transportation at
49 CFR 172.101.
* * * * *
Display fireworks. Large fireworks designed primarily to produce
visible or audible effects by combustion, deflagration, or detonation.
This term includes, but is not limited to, salutes containing more than
2 grains (130 mg) of explosive materials, aerial shells containing more
than 40 grams of pyrotechnic compositions, and other display pieces
which exceed the limits of explosive materials for classification as
``consumer fireworks.'' Display fireworks are classified as fireworks
UN0333, UN0334 or UN0335 by the U.S. Department of Transportation
materials, aerial shells containing more than 40 grams of pyrotechnic
compositions, and other display pieces which exceed the limits of
explosive materials for classification as ``consumer fireworks.''
Display fireworks are classified as fireworks UN0333, UN0334 or UN0335
by the U.S. Department of Transportation at 49 CFR Sec. 172.101.
Fireworks. Any composition or device designed to produce a visible
or an audible effect by combustion, deflagration, or detonation, and
which meets the definition of ``consumer fireworks'' or ``display
fireworks'' as defined by this section.
* * * * *
Fireworks nonprocess building. Any office building, or other
building or area in a fireworks plant where no fireworks, pyrotechnic
compositions or explosive materials are processed or stored.
* * * * *
Highway. Any public street, public alley, or public road.
* * * * *
Salute. An aerial shell, classified as a display firework, that
contains a charge of flash powder and is designed to produce a flash of
light and a loud report as the pyrotechnic effect.
* * * * *
Par. 3. Section 55.11 is amended to delete the definitions of
``licensed manufacturer-limited'' and ``manufacturer-limited''.
Par. 4. Section 55.30 is amended in paragraphs (a), (b), (d),
introductory text, by revising ``1-800-424-9555'' to read ``1-800-800-
3855'' and by revising paragraph (d)(3) to read as follows:
* * * * *
(d) * * *
(3) Description (United Nations (UN) identification number, hazard
division number, and classification letter, ex. 1.1D) as classified by
the U.S. Department of Transportation at 49 CFR 172.101 and 173.52.
Par. 5. Section 55.42 is revised to read as follows:
Sec. 55.42 License fees.
(a) Each applicant shall pay a fee for obtaining a license, a
separate fee being required for each business premises, as follows:
(1) Manufacturer--$200.
(2) Importer--$200.
(3) Dealer--$200.
(b) Each applicant for a renewal of a license shall pay a fee for a
three year license as follows:
(1) Manufacturer--$100.
(2) Importer--$100.
(3) Dealer--$100.
Par. 6. Section 55.43 is revised to read as follows:
Sec. 55.43 Permit fees.
(a) Each applicant shall pay a fee for obtaining a permit as
follows:
(1) User--$100.
(2) User-limited (nonrenewable)--$75.
(b) Each applicant for renewal of a user permit shall pay a fee of
$50 for a three year permit.
Par. 7. Section 55.46(b) is revised to read as follows:
Sec. 55.46 Renewal of license or permit.
* * * * *
(b) A user-limited permit is not renewable and is valid for a
single purchase transaction. All applications for user-limited permits
must be filed on ATF F 5400.13 or ATF F 5400.16, as required by
Sec. 55.45.
Par. 8. Section 55.51 is revised to read as follows:
Sec. 55.51 Duration of license or permit.
An original license or permit is issued for a period of one year. A
renewal license or permit is issued for a period of three years.
However, a user-limited permit is valid only for a single purchase
transaction.
Par. 9. Section 55.63 is amended by revising the heading of
paragraph (d) to read as follows:
Sec. 55.63 Explosive magazine changes.
* * * * *
(d) Magazines acquired or constructed after permit or license is
issued. * * *
* * * * *
Par. 10. Section 55.102 is revised to read as follows:
Sec. 55.102 Authorized operations by permittees and certain
licensees.
(a) In general. A permit issued under this part does not authorize
the permittee to engage in the business of manufacturing, importing, or
dealing in explosive materials. Accordingly, if a
[[Page 53691]]
permittee's operations bring him within the definition of manufacturer,
importer, or dealer under this part, he shall qualify for the
appropriate license.
(b) Distributions of surplus stocks. Permittees are not authorized
to engage in the business of sale or distribution of explosive
materials. However, permittees may dispose of surplus stocks of
explosive materials to other licensees or permittees in accordance with
Sec. 55.103, and to nonlicensees or to nonpermittees in accordance with
Sec. 55.105(d).
Par. 11. In Section 55.103, paragraphs (a)(1) and (a)(2) are
revised to read as follows:
Sec. 55.103 Transactions among licensees/permittees.
(a) General. (1) A licensed importer, licensed manufacturer or
licensed dealer selling or otherwise distributing explosive materials
(or a permittee disposing of surplus stock to another licensee or
permittee) who has the certified information required by this section
may sell or distribute explosive materials to a licensee or permittee
for not more than 45 days following the expiration date of the
distributee's license or permit, unless the distributor knows or has
reason to believe that the distributee's authority to continue business
or operations under this part has been terminated.
(2) A licensed importer, licensed manufacturer or licensed dealer
selling or otherwise distributing explosive materials (or a permittee
disposing of surplus stock to another licensee or permittee) shall
verify the license or permit status of the distributee prior to the
release of explosive materials ordered, as required by this section.
* * * * *
Par. 12. Section 55.105(d) is revised to read as follows:
Sec. 55.105 Distributions to nonlicensees and nonpermittees.
* * * * *
(d) A permittee may dispose of surplus stocks of explosive
materials to a nonlicensee or nonpermittee if the nonlicensee or
nonpermittee is a resident of the same State in which the permittee's
business premises or operations are located, or is a resident of a
State contiguous to the State in which the permittee's place of
business or operations are located, and if the requirements of
paragraphs (b), (c), (e) and (f) of this section are fully met.
* * * * *
Par. 13. Section 55.122 is amended by removing the phrase ``special
fireworks'' and the associated abbreviation ``(sf)'' where they appear
in paragraphs (b)(4), (b)(5), (c)(4) and (c)(5) and replacing them with
the phrase ``display fireworks'' and the associated abbreviation
``(df)''.
Par. 14. Section 55.123 is amended by removing the phrase ``special
fireworks'' and the associated abbreviation ``(sf)'' where they appear
in paragraphs (b)(3), (b)(4), (c)(4), (c)(5), (d)(2) and (d)(3) and
replacing them with the phrase ``display fireworks'' and the associated
abbreviation ``(df)''.
Par. 15. Section 55.124 is amended by removing the phrase ``special
fireworks'' and the associated abbreviation ``(sf)'' where they appear
in paragraphs (b)(4), (b)(5), (c)(4) and (c)(5) and replacing them with
the phrase ``display fireworks'' and the associated abbreviation
``(df)''.
Par. 16. Section 55.125 is revised to read as follows:
Sec. 55.125 Records maintained by permittees.
(a) Each permittee will take true and accurate physical inventories
which will include all explosive materials on hand required to be
accounted for in the records kept under this part. The permittee shall
take a special inventory, at the time of commencing business, which is
the effective date of the permit issued upon original qualification
under this part; at the time of changing the location of his premises
to another region; at the time of discontinuing business; and at any
other time the regional director (compliance) may in writing require.
Each special inventory is to be prepared in duplicate, the original of
which is submitted to the regional director (compliance) and the
duplicate retained by the permittee. If a special inventory required by
this paragraph (a) has not been taken during the calendar year, a
permittee is required to take at least one physical inventory. However,
the record of the yearly inventory, other than a special inventory
required by paragraph (a), will remain on file for inspection instead
of being sent to the regional director (compliance). (See also
Sec. 55.127).
(b) Each permittee shall, not later than the close of the next
business day following the date of acquisition of explosive materials,
enter the following information in a separate record:
(1) Date of acquisition.
(2) Name or brand name of manufacturer.
(3) Manufacturer's marks of identification.
(4) Quantity (applicable quantity units, such as pounds of
explosives, number of detonators, number of display fireworks, etc.).
(5) Description (dynamite (dyn), blasting agents (ba), detonators
(det), display fireworks (df), etc.) and size (length and diameter or
diameter only of display fireworks).
(6) Name, address, and license number of the persons from whom the
explosive materials are received.
(c) Each permittee shall, not later than the close of the next
business day following the date of disposition of surplus explosive
materials to another permittee or a licensee, enter in a separate
record the information prescribed in Sec. 55.124(c).
(d) Each permittee shall maintain separate records of disposition
of surplus stocks of explosive materials to nonlicensees or
nonpermittees as prescribed in Sec. 55.126.
(e) The regional director (compliance) may authorize alternate
records to be maintained by a permittee to record his acquisition of
explosive materials, when it is shown by the permittee that alternate
records will accurately and readily disclose the required information.
A permittee who proposes to use alternate records shall submit a letter
application to the regional director (compliance) and shall describe
the proposed alternate records and the need for them. Alternate records
are not to be employed by the permittee until approval is received from
the regional director (compliance).
Par. 17. Section 55.127 is revised to read as follows:
Sec. 55.127 Daily summary of magazine transactions.
In taking the inventory required by Secs. 55.122, 55.123, 55.124,
and 55.125, a licensee or permittee shall enter the inventory in a
record of daily summary transactions to be kept at each magazine of an
approved storage facility; however, these records may be kept at one
central location on the business premises if separate records of daily
transactions are kept for each magazine. Not later than the close of
the next business day, each licensee and permittee shall record by
manufacturer's name or brand name, the total quantity received in and
removed from each magazine during the day, and the total remaining on
hand at the end of the day. Quantity entries for display fireworks may
be expressed as the number and size of individual display fireworks in
a finished state or as the number of packaged display segments or
packaged displays. Information as to the number and size of display
fireworks contained in any one packaged display shall be provided to
any ATF officer on request. Any discrepancy which might indicate a
[[Page 53692]]
theft or loss of explosive materials is to be reported in accordance
with Sec. 55.30.
Par. 18. Section 55.141(a)(7) is revised to read as follows:
Sec. 55.141 Exemptions.
(a) General. * * *
(7) The importation, distribution, and storage of fireworks
classified as UN0336, UN0337, UN0431, or UN0432 explosives by the U.S.
Department of Transportation at 49 CFR 172.101 and generally known as
``consumer fireworks''.
* * * * *
Par. 19. Section 55.163 is revised to read as follows:
Sec. 55.163 False entry in record.
Any licensed importer, licensed manufacturer, licensed dealer, or
permittee who knowingly makes any false entry in any record required to
be kept under Subpart G of this part, shall be fined not more than
$10,000 or imprisoned not more than 10 years, or both.
Par. 20. Section 55.201 is amended by revising paragraph (d) and by
adding paragraph (f) to read as follows:
Sec. 55.201 General.
* * * * *
(d) The regulations set forth in Secs. 55.221 through 55.224
pertain to the storage of display fireworks, pyrotechnic compositions
and explosive materials used in assembling fireworks.
* * * * *
(f) Any person who stores explosive materials shall notify the
chief law enforcement officer and fire department of the locality in
which the explosive materials are being stored, of the type, magazine
capacity, and location of each site where such explosive materials are
stored. Such notification shall be made orally before the end of the
day on which storage of the explosive materials commenced and in
writing within 48 hours from the time such storage commenced.
Par. 21. Section 55.202 is amended by revising paragraph (b) to
read as follows:
Sec. 55.202 Classes of explosive materials.
* * * * *
(b) Low explosives. Explosive materials which can be caused to
deflagrate when confined, (for example, black powder, safety fuses,
igniters, igniter cords, fuse lighters, and ``display fireworks''
identified as UN0333, UN0334, or UN0335 by the U.S. Department of
Transportation regulations at 49 CFR 172.101, except for bulk salutes).
Par. 22. Section 55.206 is amended by revising paragraph (b) to
read as follows:
* * * * *
(b) Outdoor magazines in which low explosives are stored must be
located no closer to inhabited buildings, passenger railways, public
highways, or other magazines in which explosive materials are stored,
than the minimum distances specified in the table of distances for
storage of low explosives in Sec. 55.219, except that the table of
distances in Sec. 55.224 shall apply to the storage of display
fireworks. The distances shown in Sec. 55.219 may not be reduced by the
presence of barricades.
* * * * *
Par. 23. Section 55.218 is amended by removing the phrase ``Public
highways, class A to D'' where it appears in the table heading, and by
adding in its place the phrase, ``Public Highways with Traffic Volume
of less than 3000 Vehicles/Day''; by removing the number ``2'' where it
appears as the first entry in the column titled ``Pounds over'' and by
adding in its place the number ``0''; by adding the following heading
to the table in this section; and removing the heading preceding the
Notes to the Table of Distances for Storage of Explosives.
TABLE: AMERICAN TABLE OF DISTANCES FOR STORAGE OF EXPLOSIVES (DECEMBER
1910), AS REVISED AND APPROVED BY THE INSTITUTE OF MAKERS OF EXPLOSIVES
JUNE, 1991.
* * * * *
Par. 24. In Section 55.221, paragraphs (a) and (d) are revised to
read as follows:
Sec. 55.221 Requirements for display fireworks, pyrotechnic
compositions, and explosive materials used in assembling fireworks.
(a) Display fireworks, pyrotechnic compositions and explosive
materials used to assemble fireworks shall be stored at all times as
required by this subpart unless they are in the process of manufacture,
assembly, packaging, or are being transported.
* * * * *
(d) All dry explosive powders and mixtures, partially assembled
display fireworks, and finished display fireworks shall be removed from
fireworks process buildings at the conclusion of a day's operations and
placed in approved magazines.
Par. 25. In Secs. 55.222, 55.223, and 55.224, the term ``common
fireworks'' is removed wherever it appears, and the term ``consumer
fireworks'' is added in its place, and the term ``special fireworks''
is removed wherever it appears and the term ``display fireworks'' is
added in its place.
Signed: June 3, 1996.
John W. Magaw,
Director.
Approved: June 12, 1996.
John P. Simpson,
Deputy Assistant Secretary (Regulatory, Tariff, and Trade Enforcement).
[FR Doc. 96-25817 Filed 10-11-96; 8:45 am]
BILLING CODE 4810-31-U
