2023-18075. Annual Reporting of Explosive Materials Storage Facilities to the Local Fire Authority

AGENCY:

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

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Department of Justice is proposing to amend Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) regulations to require that any person who stores explosive materials notify on an annual basis the authority having jurisdiction for fire safety in the locality in which the explosive materials are being stored of the type of explosives, magazine capacity, and location of each site where such materials are stored. In addition, the proposed rule requires any person who stores explosive materials to notify the authority having jurisdiction for fire safety in the locality in which the explosive materials were stored whenever storage is discontinued. These changes are intended to increase public safety.

DATES:

Written comments must be postmarked and electronic comments must be submitted on or before November 21, 2023. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after 11:59 p.m. Eastern Time on the last day of the comment period.

ADDRESSES:

You may submit comments, identified by docket number (ATF 2013R–15P), by any of the following methods:

• Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments.

• Mail: Shermaine Kenner, Mailstop 6N–602, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 New York Avenue NE, Washington, DC 20226, ATTN: ATF 2013R–15P.

Instructions: All submissions received must include the agency name and docket number (2013R–15P) for this notice of proposed rulemaking (“NPRM”). All properly completed comments received from any of the methods described above will be posted without change to the Federal eRulemaking portal, https://www.regulations.gov. This includes any personal identifying information (“PII”) submitted in the body of the comment or as part of a related attachment. Commenters who submit through the Federal eRulemaking portal and who do not want any of their PII posted on the internet should omit PII from the body of their comment or in any uploaded attachments. Commenters who submit through mail should likewise omit their PII from the body of the comment and provide any PII on the coversheet only. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Participation” heading of the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

Shermaine Kenner, Office of Regulatory Affairs, 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

Title XI of the Organized Crime Control Act of 1970, Public Law 91–452, 84 Stat. 922, added chapter 40 (Importation, Manufacture, Distribution and Storage of Explosive Materials) to title 18 of the United States Code. One purpose of title XI is to reduce the “hazard to persons and property arising from misuse and unsafe or insecure storage of explosive materials.” Public Law 91–452, sec. 1101, 84 Stat. at 952.

The Attorney General is responsible for implementing title XI. See18 U.S.C. 847. The Attorney General has delegated that responsibility to the Director of the ATF, subject to the direction of the Attorney General and the Deputy Attorney General. See28 CFR 0.130. Regulations in 27 CFR part 555 implement title XI.

On August 24, 1998, ATF published in the Federal Register a final rule to implement a storage notification requirement for manufacturers and other storers of explosives. Notice No. 841, 63 FR 44999. ATF amended the regulations in 27 CFR part 55 (now part 555) ^[1] to require that any person who starts storing explosive materials notify the authority having jurisdiction for fire safety in the locality in which the explosive materials are being stored of the type of explosives, magazine capacity, and location of each site where such explosives are stored. The 1998 final rule was issued in response to the numerous deaths and injuries sustained by emergency response personnel responding to fires at sites where explosives were stored without the knowledge of State and local officials. See Notice No. 841, 61 FR 53688 (Oct. 15, 1996).

ATF is concerned with the safety of emergency response personnel responding to fires on sites where explosives are stored, and the safety of the public around such areas. It is important that first responders are aware of explosives storage when responding to a fire site. Firefighters and other fire safety officials generally do not attempt to fight a fire that involves a container of explosive materials because of the potential for an explosion that could harm the responders. Knowledge of the existence of explosives in such close proximity to a fire would typically prompt an evacuation of the facility and the surrounding area to ensure the safety of the first responders and the public.

The regulation at 27 CFR 555.201(f) requires the reporting of certain information when storage of explosive materials commences, but does not specifically require subsequent reporting that might reflect changes in the type of explosives and magazine capacity. Explosives industry association representatives raised this issue with ATF during discussions conducted in connection with Executive Order 13650 of August 1, 2013, “Improving Chemical Facility Safety and Security.” These representatives recommended that this regulation be amended to require annual reporting. They stated that this would increase communication between industry members and their local emergency responders, mitigate the negative effects of turnover in the emergency response community, and increase training opportunities for the local responders.

Executive Order 13650 recognizes the importance of implementing safety measures for the handling and storage of chemicals, including explosive materials. In addition, it established the Chemical Facility Safety and Security Working Group, co-chaired by the heads of the Department of Homeland Security, the Environmental Protection Agency, and the Department of Labor, and whose membership includes the heads of the Department of Justice, Department of Agriculture, and Department of Transportation, to carry out the responsibilities of the order. Department heads can also delegate their responsibilities to a representative. A final report, submitted by the working group to the President in May 2014, notes that ATF will work closely with explosives industry associations to develop best practices, procedures, or regulations to improve communication with fire authorities, including more frequent notification of significant changes to storage facilities. SeeExecutive Order 13650: Actions to Improve Chemical Facility Safety and Security—A Shared Commitment: Report for the President at 51 (May 2014), https://www.cisa.gov/​sites/​default/​files/​publications/​2014-08-25-final-chemical-eo-status-report-508.pdf.

II. Proposed Amendments to 27 CFR Part 555

As a result of our consultations with explosives industry associations, ATF is proposing to amend the regulation at 27 CFR 555.201(f) to require annual reporting of explosive materials storage to local fire authorities. ATF believes that a requirement for annual reporting will lead to more frequent contact between persons storing explosive materials and local fire authorities, ensure that explosives storage information is timely provided to new first responder staff members, and serve to reinforce the importance of the information to fire response organizations. ATF believes that an annual reporting time frame would best balance the need for these results against the burden of more frequent reporting. For these reasons, ATF is proposing to amend the regulation at 27 CFR 555.201(f) to require persons to report storage of explosive materials to local fire authorities on an annual basis.

The current regulation at 27 CFR 555.201(f) requires any person who stores explosive materials to provide to fire safety officials an oral notification before the end of the day on which storage of the explosive materials commenced, and in writing ( e.g., email, letter) within 48 hours after commencement of storage. Both forms of notification must include the type of explosives, magazine capacity, and location of each site where such explosive materials are stored.

ATF proposes amending the regulation to require any person who stores explosive materials to notify authorities having jurisdiction for fire safety in the locality in which the explosive materials are being stored upon commencement of storage and every 12 months thereafter. In addition, such persons would be required to provide written notification whenever they discontinue the storage of explosives.

ATF further proposes to amend the regulation to require that each written notification contain the name, title, and agency of the fire authority official notified and the date of the written notification. The person submitting the notification will be required to retain a copy of the written notification for five years and make such notification available for examination or inspection by ATF at all reasonable times.

This annual notification will increase public safety through increased communication between storers of explosive materials and their local emergency responders, provide updated storage information to local authorities, and allow for risk assessments and emergency response preparation prior to incidents, thus reducing potential safety and damage risk to first responders and emergency equipment, respectively.

III. Statutory and Executive Order Review

A. Executive Orders 12866 and 13563—Regulatory Review

This proposed regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” sec. 1(b), The Principles of Regulation, and in accordance with Executive Order 13563, “Improving Regulation and Regulatory Review.”

The Office of Management and Budget (“OMB”) has determined that this proposed rule is not a “significant regulatory action” under Executive Order 12866, section 3(f). Furthermore, this rulemaking will not have an annual effect on the economy of $100 million or more, nor will it adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health, or safety, or State, local, or tribal governments or communities.

This proposed rule would amend 27 CFR 555.201(f) to require annual notification to local authorities having jurisdiction for fire safety concerning the storage of explosive materials. More specifically, this proposed rule would require any person who stores explosive materials to notify, at the commencement of storage, local authorities with jurisdiction for fire safety with respect to the type of explosives, magazine capacity, and location of each site where such explosive materials are stored. Notification would also be required once every 12 months thereafter, but no later than the end of the month during which the 12-month period is completed, and upon discontinuance of the storage of explosives.

ATF estimates that this rulemaking will have an impact on approximately 9,674 licensees or permittees, and that notification will take 30 minutes per occasion. ATF cost estimates for this rulemaking are as follows:

Labor Costs: Half hour of labor ($41.86/hour × 0.5 hours) ^[2] for completing and mailing the notification × 9,674 licensees or permittees = $202,477. The annual cost of this rulemaking would be $202,477.

The benefits to this rulemaking would allow for improved risk assessments and emergency response preparation prior to incidents, thus reducing potential safety and damage risk to first responders and emergency equipment, respectively.

B. Executive Order 13132—Federalism

This proposed 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, “Federalism,” the Attorney General has determined that this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

C. Executive Order 12988—Civil Justice Reform

This proposed 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

Under the Regulatory Flexibility Act, 5 U.S.C. 601–612, we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

By approving this proposed rule, the Attorney General certifies that it will not have a significant economic impact on a substantial number of small entities. ATF estimates that this rulemaking will have an impact on approximately 9,674 licensees or permittees, with the majority of those being small businesses. The notification is estimated to take 30 minutes annually for a phone call and to provide written notification, most likely by email. ATF cost estimates for this rulemaking are as follows:

Labor Costs: Half hour of labor ($41.86/hour × 0.5 hours) ^[3] for completing and mailing the notification = $21.

As such, the cost associated with the notification is minimal.

E. Congressional Review Act

This proposed rule is not a major rule as defined by the Congressional Review Act, 5 U.S.C. 804.

F. Unfunded Mandates Reform Act of 1995

This proposed rule will not result in the aggregate expenditure by State, local, and tribal governments, 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 are necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531–1538.

G. Paperwork Reduction Act

This proposed rule would call for a revision to an existing collection of information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501–3521. As defined in 5 CFR 1320.3(c), “collection of information” comprises reporting, recordkeeping, monitoring, posting, labeling, and other similar actions. The title and description of the information collection, a description of those who must collect the information, and an estimate of the total annual burden follow. The estimate covers the time for reviewing instructions, searching existing sources of data, gathering and maintaining the data needed, and completing and reviewing the collection.

Title: Notification to Fire Safety Authority of Storage of Explosive Materials.

OMB Control Number: 1140–0071.

Summary of the Collection of Information: This proposed rule amends 27 CFR 555.201(f) to require annual notification to local authorities having jurisdiction for fire safety concerning the storage of explosive materials. Currently, any person who stores explosive materials is required at the commencement of storage to notify local authorities with jurisdiction for fire safety with respect to the type of explosives, magazine capacity, and location of each site where such explosive materials are stored. This proposed rule would require submission of such reports annually thereafter, and notification whenever storage is discontinued. Any person storing explosive materials would be required to maintain a copy of the written notification for five years from the date of notification.

Need for Information: It is important that first responders are aware of explosives storage when responding to a fire site. Firefighters and other fire safety officials generally do not attempt to fight a fire that involves a container of explosive materials because of the potential for an explosion that could harm the responders. Knowledge of the existence of explosives in such close proximity to a fire would typically prompt an evacuation of the facility and the surrounding area to ensure the safety of the first responders and the public.

Proposed Use of Information: To provide awareness of the existence of explosives in close proximity to a fire so that first responders prompt an evacuation of the facility and the surrounding area to ensure the safety of the first responders and the public.

Description of the Respondents: Persons or entities who store explosive materials.

Estimated Number of Respondents: 9,674.

Frequency of Response: Once annually.

Burden of Response: 30 minutes.

We ask for public comment on the proposed collection of information to help us determine how useful the information is, whether it can help the various levels of government perform their functions better, whether it is readily available elsewhere, how accurate our estimate of the burden of collection is, how valid our methods for determining burden are, how we can improve the quality, usefulness, and clarity of the information, and how we can minimize the burden of collection.

If you submit comments on the collection of information, submit them both to OMB and to the Docket Management Facility where indicated under ADDRESSES , by the date set forth under DATES .

You need not respond to a collection of information unless it displays a currently valid control number from OMB. Before the requirements for this collection of information become effective, we will publish a notice in the Federal Register of OMB's decision to approve, modify, or disapprove the proposed collection.

IV. Public Participation

A. Comments Sought

ATF requests comments on the proposed rule from all interested persons. ATF specifically requests comments on the clarity of this proposed rule and how easy it is to understand, as well as comments on the costs or benefits of the proposed rule and on the appropriate methodology and data for calculating those costs and benefits.

In addition, ATF specifically requests comments regarding whether a different time frame would be more appropriate or less burdensome.

All comments must reference the docket number (ATF 2013R–15P) and be legible. Commenters must also include their complete first and last name and contact information. If submitting through the Federal eRulemaking portal, as described in Section IV.C., commenters should carefully review and follow the website's instructions on submitting comments. If submitting as an individual, any information provided for city, state, zip code, and phone will not be publicly viewable when the comment is published on regulations.gov by ATF. If submitting a comment by mail, commenters should review Section IV.B. “Confidentiality,” regarding proper submission of personally identifiable information (PII). ATF will not consider, or respond to, comments that do not meet these requirements or comments containing profanity. In addition, if ATF cannot read your comment due to technical difficulties and cannot contact you for clarification, ATF may not be able to consider your comment. ATF will treat all comments as originals and will not acknowledge receipt of comments.

ATF will carefully consider comments submitted on or before the closing date, and will give comments submitted after that date the same consideration if it is practical to do so, but assurance of consideration cannot be given except as to timely comments.

B. Confidentiality

ATF will make all comments meeting the requirements of this section, whether submitted electronically or on paper, available for public viewing at ATF and on the internet as part of the eRulemaking initiative, and subject to the Freedom of Information Act (5 U.S.C. 552), with exceptions for confidential information as discussed below. Commenters who submit by mail and who do not want their name or other PII posted on the internet should submit comments along with a separate cover sheet containing their PII. Both the cover sheet and comment must reference this docket number (ATF 2013R–15P). Information contained in the cover sheet will not appear on the internet. ATF will not redact PII that appears within the body of comment, and it will appear on the internet. Commenters who submit through the Federal eRulemaking portal and who do not want any of their PII posted on the internet should omit such PII from the body of their comment or in any uploaded attachments.

The commenter should not include material that he or she considers inappropriate for disclosure to the public. Any person submitting a comment shall specifically designate that portion (if any) of the comment that contains material that is confidential under law ( e.g., trade secrets, processes). The commenter shall set forth any portion of a comment that is confidential under law on pages separate from the balance of the comment with each page prominently marked “confidential” at the top of the page.

Confidential information will be included in the rulemaking record but will not be disclosed to the public. Any comments containing material that is not confidential under law may be disclosed to the public. In any event, the name of the person submitting a comment is not exempt from disclosure.

C. Submitting Comments

Submit comments in any of three ways (but do not submit the same comments multiple times or by more than one method).

• Federal eRulemaking Portal: We strongly recommend that you submit your comments to ATF via the Federal eRulemaking portal. Visit https://www.regulations.gov and follow the instructions for submitting comments. Comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number provided by https://www.regulations.gov after you have successfully uploaded your comment.

• Mail: Send written comments to the address listed in the ADDRESSES section of this document. Written comments must appear in minimum 12-point font size (.17 inches), include the commenter's complete first and last name and full mailing address, and be signed. Written comments may be of any length.

D. Request for Hearing

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 of ATF 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.

Disclosure

Copies of this proposed rule and the comments received will be available for public inspection through the Federal eRulemaking portal, https://www.regulations.gov, or by appointment during normal business hours at the ATF Reading Room, Room 1E–062, 99 New York Avenue NE, Washington, DC 20226; telephone: [phone].

Drafting Information

The author of this document is Shermaine Kenner, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives.

List of Subjects in 27 CFR Part 555

• Administrative practice and procedure
• Explosives
• Freight
• Hazardous substances
• Imports
• Penalties
• Reporting and recordkeeping requirements
• Safety
• Security measures
• Seizures and forfeitures
• Transportation
• Warehouses

Authority and Issuance

Accordingly, for the reasons discussed in the preamble, the Department of Justice proposes to amend 27 CFR part 555 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. Amend § 555.201, by revising paragraph (f) to read as follows:

§ 555.201

General.

* * * * *

(f) Any person who stores explosive materials shall notify the authority having jurisdiction for fire safety in the locality in which the explosive materials are being stored of the type of explosives, magazine capacity, and location of each site where such explosive materials are stored. 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. Thereafter, written notification shall be made once every 12 months following the initial notification, but no later than the end of the month during which the 12-month period is completed, unless the person is no longer storing explosive materials at the relevant site. When a person ceases to store explosive materials at a site, written notification to the authority having jurisdiction for fire safety in the locality in which the explosive materials were stored shall be made within 48 hours of the person discontinuing storage. Each written notification must also contain the name, title, and agency of the fire authority official notified and the date of the written notification. A copy of each written notification must be maintained by the person submitting the notification for five years from the date of notification and made available for examination or inspection by an ATF officer at all reasonable times.

Dated: August 11, 2023.

Merrick B. Garland,

Attorney General.

Footnotes

1.  On January 24, 2003, ATF issued a final rule titled “Reorganization of Title 27, Code of Federal Regulations,” which, among other things, removed part 55 from chapter I and recodified it as part 555 in the new chapter II. 68 FR 3744.

2.  ATF bases these economic cost estimates on employee compensation data for September 2022 as determined by the U.S. Department of Labor, Bureau of Labor Statistics, and announced in its news release dated December 15, 2022, which is found at https://www.bls.gov/​news.release/​archives/​ecec_​12152022.pdf. The Bureau of Labor Statistics determined the average hourly employer costs for employee compensation for private industry workers to be $41.86.

3.  ATF bases these economic cost estimates on employee compensation data for September 2022 as determined by the U.S. Department of Labor, Bureau of Labor Statistics, and announced in its news release dated December 15, 2022, which is found at https://www.bls.gov/​news.release/​archives/​ecec_​12152022.pdf. The Bureau of Labor Statistics determined the average hourly employer costs for employee compensation for private industry workers to be $41.86.