Commerce in Explosives

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

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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