[Federal Register: October 15, 1996 (Volume 61, Number 200)] [Proposed Rules] [Page 53688-53692] >From the Federal Register Online via GPO Access [wais.access.gpo.gov] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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