Explosives, 18792-18845 [E7-6607]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 72, Number 71 (Friday, April 13, 2007)]
[Proposed Rules]
[Pages 18792-18845]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-6607]



[[Page 18791]]

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Part III





Department of Labor





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Occupational Safety and Health Administration



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29 CFR Part 1910



Explosives; Proposed Rule

Federal Register / Vol. 72, No. 71 / Friday, April 13, 2007 / 
Proposed Rules

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. OSHA-2007-0032 (formerly Docket No. OSHA-S031-2006-0665]
RIN 1218-AC09


Explosives

AGENCY: Occupational Safety and Health Administration (OSHA), 
Department of Labor.

ACTION: Proposed rule.

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SUMMARY: OSHA proposes to revise the explosives and blasting agents 
standard in subpart H of part 1910. This revision of Sec.  1910.109 is 
intended to enhance the protections provided to employees engaged in 
the manufacture, storage, sale, transportation, handling, and use of 
explosives. The proposal updates and clarifies the regulatory language, 
addresses regulatory inconsistencies between OSHA and other Federal 
agencies, incorporates updated consensus standards, and provides the 
regulated community with greater compliance flexibility.

DATES: Written comments and hearing requests must be submitted by the 
following dates:
    Hard copy: Comments and hearing requests must be submitted 
(postmarked or sent) by July 12, 2007.
    Facsimile and electronic transmissions: Comments and hearing 
requests must be sent by July 12, 2007.

ADDRESSES: You may submit comments, identified by Docket No. OSHA-2007-
0032, by any of the following methods:
    Electronically: You may submit comments and attachments 
electronically at https://www.regulations.gov, which is the Federal 
eRulemaking Portal. Follow the instructions on-line for making 
electronic submissions.
    Fax: If your comments, including attachments, do not exceed 10 
pages, you may fax them to the OSHA Docket Office at (202) 693-1648.
    Mail, hand delivery, express mail, messenger or courier service: 
You must submit three copies of your comments and attachments to the 
OSHA Docket Office, Docket No. OSHA-2007-0032, U.S. Department of 
Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210. 
Deliveries (hand, express mail, messenger and courier service) are 
accepted during the Department of Labor's and Docket Office's normal 
business hours, 8:15 a.m.-4:45 p.m., e.t.
    Instructions: All submissions must include the Agency name and the 
docket number for this rulemaking (Docket No. OSHA-2007-0032). All 
comments, including any personal information you provide, are placed in 
the public docket without change and may be made available online at 
https://www.regulations.gov. Therefore, OSHA cautions you about 
submitting personal information such as social security numbers and 
birthdates. For further information on submitting comments, plus 
additional information on the rulemaking process, see the ``Public 
Participation'' heading in the SUPPLEMENTARY INFORMATION section of 
this document.
    Docket: To read or download comments and materials submitted in 
response to this Federal Register notice, go to Docket No. OSHA-2007-
0032 at https://www.regulations.gov or at the OSHA Docket Office at the 
address above. All comments and submissions are listed in the https://
www.regulations.gov index, however, some information (e.g., copyrighted 
material) is not publicly available to read or download through that 
Web page. All comments and submissions, including copyrighted material, 
are available for inspection and copying at the OSHA Docket Office.
    For information on accessing exhibits referenced in this Federal 
Register notice, see the ``References and Exhibits'' and ``Public 
Participation'' headings in the SUPPLEMENTARY INFORMATION section of 
this document.
    Electronic copies of this Federal Register document are available 
at https://regulations.gov. Copies also are available from the OSHA 
Office of Publications, Room N-3101, U.S. Department of Labor, 200 
Constitution Avenue, NW., Washington DC 20210; telephone (202) 693-
1888. This document, as well as news releases and other relevant 
information, also are available at OSHA's Web page at https://
www.osha.gov.

FOR FURTHER INFORMATION CONTACT: For general information and press 
inquiries, contact Mr. Kevin Ropp, Office of Communications, Room N-
3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Washington, DC 20210; telephone (202) 693-1999. For technical 
inquiries, contact Donald Pittenger, Directorate of Standards and 
Guidance, Room N-3609, OSHA, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Washington, DC 20210; telephone (202) 693-2255 or fax 
(202) 693-1663.

SUPPLEMENTARY INFORMATION:

References and Exhibits

    In this Federal Register notice, OSHA references a number of 
supporting materials. References to these materials are given as 
``Ex.'' followed by the number of the document. The referenced 
materials are posted in both Docket No. OSHA-S031-2006-0665 (which is 
available at https://www.regulations.osha.gov) and OSHA Docket No. S-031 
(which is available at https://dockets.osha.gov). The documents are also 
available at the OSHA Docket Office (see ADDRESSES section). For 
further information about accessing exhibits referenced in this Federal 
Register notice, see the ``Public Participation'' heading in the 
SUPPLEMENTARY INFORMATION section of this document.

Table of Contents

I. Background
II. Legal Considerations
III. Summary and Explanation of the Proposed Rule
IV. Preliminary Economic and Regulatory Screening Analysis
V. Environmental Impact Analysis
VI. Paperwork Reduction Act
VII. Federalism
VIII. State Plan Standards
IX. Unfunded Mandates
X. Public Participation
XI. List of Subjects in 29 CFR part 1910
XII. Authority and Signature
XIII. Amendments to Standards

I. Background

History of the Standard

    In 1970, Congress enacted the Occupational Safety and Health Act 
(29 U.S.C. 651 et seq.) (the Act or the OSH Act) directing OSHA to 
promulgate safety and health standards to assure, as far as possible, 
safe and healthful working conditions for every employee in the Nation. 
To expedite OSHA's mission, Congress directed the Secretary of Labor 
through section 6(a) of the Act (29 U.S.C. 655(a)) to promulgate safety 
and health standards within the first two years of the Act's enactment 
by summarily adopting existing national consensus and established 
Federal standards, without requiring the Agency to go through the 
rulemaking procedures detailed in section 6 of the Act.
    On May 29, 1971, pursuant to section 6(a) of the Act, OSHA 
promulgated its explosives and blasting agents standard at 29 CFR 
1910.109 (36 FR 10553-10562). The standard was based on two national 
consensus standards--the National Fire Protection Association (NFPA) 
495-1970 Code for the Manufacture, Transportation, Storage, and Use of 
Explosives and Blasting

[[Page 18793]]

Agents, and NFPA 490-1970 Code for the Storage of Ammonium Nitrate.
    The explosives and blasting agents standard promulgated in 1971 was 
similar to the current standard found at Sec.  1910.109 and included 
provisions on the storage of explosives, blasting agents, and ammonium 
nitrate; the transportation of explosives; and the use of explosives 
and blasting agents. Few significant changes have been made to the 
standard since its promulgation. On March 31, 1972, OSHA amended the 
standard by adding paragraph (j) ``Small arms ammunition, small arms 
primers, and small arms propellants'' (37 FR 6577). It also added 
paragraph (k) ``Scope,'' which stated in part that: ``This section 
applies to the manufacture, keeping, having, storage, sale, 
transportation, and use of explosives, blasting agents, and 
pyrotechnics'' 37 FR 6577.
    On February 24, 1992, OSHA issued a new standard at Sec.  1910.119 
``Process Safety Management'' (PSM) covering working conditions during 
the manufacture of highly hazardous chemicals (57 FR 6356). Both the 
manufacture of explosives (excluding blasting agents) and the 
manufacture of pyrotechnics must meet the requirements contained in the 
PSM standard. 57 FR 6356. The PSM final rule revised the scope 
provision in the explosives and blasting agents standard by adding 
Sec.  1910.109(k)(2) which states that the manufacture of explosives 
must meet the requirements contained in Sec.  1910.119 and by adding 
Sec.  1910.109(k)(3) which states that the manufacture of pyrotechnics 
must meet the requirements in Sec.  1910.119. 57 FR 6356.
    The most recent revisions made to Sec.  1910.109 were on June 18, 
1998 (63 FR 33450) in which OSHA amended two provisions to make them 
consistent with Department of Transportation (DOT) regulations. The 
revisions now allow blasting caps to be transported on the same vehicle 
with other explosives (Sec.  1910.109(d)(1)(iv)) and allow the re-use 
of containers and packaging materials that have previously contained 
explosives provided that such re-use is performed in accordance with 
DOT regulations at 49 CFR 173.28 (Sec.  1910.109(e)(2)(i)).

The Petition

    On July 29, 2002, OSHA received a petition (the Petition) from the 
Institute of Makers of Explosives (IME) and the Sporting Arms and 
Ammunition Manufacturers' Institute (SAAMI) to revise the standard. A 
copy of the Petition can be found at Docket No. OSHA-S031-2006-0665 
(Ex. 2-1). IME is an association of manufacturers of high explosives 
and other companies that distribute explosives or provide other related 
services and the SAAMI is an association of manufacturers of sporting 
firearms, ammunition, and related components. The Petition claimed that 
Sec.  1910.109 does not reflect significant technological and safety 
advances made by the explosives industry since the standard was 
promulgated. It further contended that the standard contains outdated 
references, classifications, and jurisdiction-related provisions that 
do not accurately represent the current regulatory environment.
    The Petition requested OSHA to make a number of changes to the 
standard, including the following, and provided draft regulatory 
language:
     Exclude the manufacture of explosives from the PSM 
requirements of Sec.  1910.119 and incorporate revised PSM requirements 
for the manufacture of explosives into Sec.  1910.109;
     Replace references to outdated DOT explosives 
classifications with the current DOT classification system;
     Eliminate the provisions in Sec.  1910.109 covering the 
storage of explosives and the construction of magazines because they 
are regulated by the Bureau of Alcohol, Tobacco, Firearms, and 
Explosives (ATF);
     Eliminate provisions in Sec.  1910.109 applicable to the 
transportation of explosives on public highways because such 
transportation is regulated by DOT;
     Update provisions for guarding against accidental 
initiation by sources of extraneous electricity;
     Include provisions governing the intra-plant 
transportation of explosives;
     Include provisions for the use of nonelectric detonation 
systems;
     Revise provisions regarding the crimping of detonators to 
safety fuse;
     Update provisions for clearing the blasting area of 
unauthorized personnel; and
     Update the provisions for the design of bulk delivery and 
mixing vehicles and of mixing equipment.
    In response to the Petition, OSHA carefully reviewed the 
requirements of the current standard and other related OSHA standards. 
It analyzed the recommendations as well as the draft regulatory 
language provided in the Petition. OSHA also examined the regulations 
of other federal agencies relating to explosives and consulted with 
interested parties about the need to revise the standard. Apart from 
IME and SAAMI, these interested parties included the International 
Society of Explosives Engineers (ISEE), the American Pyrotechnics 
Association (APA), the United Steel Workers of America (USWA), and the 
Paper, Allied-Industrial, Chemical and Energy Workers International 
(PACE). In addition, OSHA consulted with other Federal agencies about 
their explosives regulations and procedures. These Federal agencies 
included the DOT, ATF, the Interagency Committee on Explosives (ICE), 
the Department of Defense Explosives Safety Board (DDESB), the Consumer 
Product Safety Commission (CPSC), and the Mine Safety and Health 
Administration.
    Based upon its review of the Petition and the standard, OSHA has 
concluded that the following actions are appropriate. These actions are 
discussed in greater detail in the summary and explanation section of 
the proposed rule (see section III).
A. Update the Standard
    Workplace hazards associated with explosives activities pose 
significant risks to employees. OSHA has determined that the existing 
standard needs to be updated to adequately protect employees from these 
risks. Each year, over 5 billion pounds of explosives are manufactured 
or imported into the U.S.A. These explosives are used on a daily basis 
in many different ways. The manufacture, storage, transportation, sale, 
and use of explosives present significant risks not only to the 
employees who work directly with them but to the many other employees 
who may work in the immediate vicinity of the explosives.
    Explosives are, by their nature and design, inherently dangerous 
and their safe handling, storage, and use are critical to the safety of 
those working with or near them. There have been many incidents in the 
past of injuries and deaths resulting from the accidental detonation of 
explosives. One of the most famous examples, the Texas City Disaster, 
did not actually involve explosives but ammonium nitrate, one of the 
ingredients used to make a type of explosive called blasting agents. On 
April 16, 1947, a ship named the SS Grandcamp was docked at the port of 
Texas City, Texas. Its cargo hold was full of ammonium nitrate. Shortly 
after a small fire was detected in the hold, the ammonium nitrate 
detonated. The explosion killed at least 581 people, injured over 5,000 
others, destroyed the port, and severely damaged the town. The 
shockwave from the explosion shattered windows in Houston, over 40 
miles away. Only three years earlier, another ship docked at Port 
Chicago, California, exploded when its cargo of explosives detonated. 
The explosion

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killed 320 sailors and civilians and injured over 400 others.
    A review of accidents involving explosives indicates that such 
incidents are most often caused by unsafe work practices or faulty 
equipment. These factors are frequently exacerbated by the failure to 
properly train not only the employees handling and using the explosives 
but also the employees in the vicinity of the explosives in question. 
In many cases, the initial incident, while serious, triggers even 
greater loss of life and property by spreading to nearby facilities or 
causing serious injury to employees trying to fight the resulting fire.
    The existing standard has undergone few significant revisions since 
it was promulgated over 35 years ago and many of its requirements do 
not accurately reflect current working conditions in the explosives 
industry. Over the last 35 years, the explosives industry has changed 
significantly. New forms of explosives have been developed (e.g., 
emulsions), new kinds of detonators have been introduced (e.g., 
electronic detonators), and substantial changes have been made in the 
processes and equipment employed to create, handle and use explosives 
(e.g., new kinds of bulk delivery vehicles). OSHA has concluded that 
the existing standard must be updated to reflect these changes and to 
adequately protect employees from the significant risks involved in 
working with or near explosives. To update the standard, OSHA has 
consulted with other federal agencies and with interested parties about 
new technologies, products, and procedures used by the explosives 
industry and has incorporated these developments into the proposed 
rule. It has also updated all references in the standard to current 
national consensus standards.
B. Increase the Clarity and Focus of the Standard
    Many of the existing requirements in Sec.  1910.109 are difficult 
to understand, repetitive, and internally inconsistent. In addition, 
some of these existing requirements address issues, such as general 
public safety, that go beyond OSHA's authority to regulate. When the 
standard was promulgated in 1971 through section 6(a) of the Act, OSHA 
adopted much of the language contained in the national consensus 
standards upon which it was based (i.e., NFPA 495 and NFPA 490). These 
national consensus standards were not written in language well suited 
for a Federal regulation and had broader coverage (e.g., public safety) 
than needed by OSHA to cover working conditions in the explosives 
industry.
    To make the standard more ``user-friendly,'' the proposal has been 
rewritten in plain language. Internal inconsistencies and duplicative 
requirements have been eliminated. In addition, it has been rewritten 
to eliminate references to public safety that are beyond OSHA's 
authority to regulate.
C. Increase the Regulatory Consistency of the Standard
    There are inconsistencies between the explosives regulations of 
different Federal agencies. For example, OSHA classifies explosives in 
its current standard as Class A, Class B, and Class C explosives. ATF 
classifies explosives in terms of high explosives, low explosives, and 
blasting agents (27 CFR 555.202). DOT has adopted the United Nations 
Globally Harmonized System of Classification and Labelling of Chemicals 
(GHS) (Ex. 2-2). The GHS is intended to harmonize existing 
communication systems on chemicals in order to develop a single, 
worldwide harmonized system to address classification of chemicals 
according to their hazards, and communicate the related information 
through labels and safety data sheets. Based on the GHS, DOT classifies 
all explosives as Class 1 chemicals and further subdivides them into 
Division 1.1 through 1.6 explosives (49 CFR 173.50).
    Magazines (structures used for the storage of explosives) are also 
classified differently by different Federal agencies. For example, OSHA 
classifies magazines as Class I and Class II (Sec.  1910.109(c)(1)) but 
ATF classifies them as Type 1 through Type 5 (27 CFR 555.203).
    One of OSHA's major goals in this proposed rulemaking is to 
increase regulatory consistency with other Federal agencies involved in 
regulating the explosives industry and to eliminate confusion within 
the regulated community. To achieve this goal, OSHA proposes to adopt 
the GHS definitional classification system for ``explosives.'' This 
will make OSHA's classification system consistent with the one used by 
DOT, which is also based on the GHS.
D. Increase the Regulatory Flexibility of the Standard
    To provide the regulated community with greater regulatory 
flexibility, OSHA has endeavored to use general performance-oriented 
language in the proposed standard. This allows OSHA to draft a 
requirement in terms of a goal and it allows the employer greater 
choice on how to achieve that goal.
E. Resolve Authority Issues in the Standard
    There is some confusion in the regulated community over the 
boundaries of OSHA's authority to regulate working conditions in the 
explosives industry. One of OSHA's goals in this rulemaking is to 
clarify the extent of its authority to regulate working conditions in 
the explosives industry. In particular, OSHA discusses the boundaries 
of its authority to regulate working conditions during the storage of 
explosives and during the transportation of explosives.

II. Legal Considerations

    The purpose of the OSH Act is ``to assure so far as possible every 
working man and woman in the Nation safe and healthful working 
conditions and to preserve our human resources.'' 29 U.S.C. 651(b). To 
achieve this goal, Congress authorized the Secretary of Labor to 
promulgate and enforce occupational safety and health standards (see 29 
U.S.C. 655(a) authorizing summary adoption of existing consensus and 
federal standards within two years of Act's enactment, 655(b) 
authorizing promulgation of standards pursuant to notice and comment, 
and 654(b) requiring employers to comply with OSHA standards).
    A safety or health standard is a standard ``which requires 
conditions, or the adoption or use of one or more practices, means, 
methods, operations, or processes, reasonably necessary or appropriate 
to provide safe or healthful employment'' (29 U.S.C. 652(8)).
    A standard is reasonably necessary or appropriate within the 
meaning of Section 652(8) if it substantially reduces or eliminates 
significant risk, and is economically feasible, technologically 
feasible, and cost effective, and is consistent with prior Agency 
action or is a justified departure, is supported by substantial 
evidence, and is better able to effectuate the Act's purposes than any 
national consensus standard it supersedes. See 58 FR 16612-16616 (March 
30, 1993).
    A standard is technologically feasible if the protective measures 
it requires already exist, can be brought into existence with available 
technology, or can be created with technology that can reasonably be 
expected to be developed. American Textile Mfrs. Institute v. OSHA, 452 
U.S. 490, 513 (1981) (ATMI); American Iron and Steel Institute v. OSHA, 
939 F.2d 975, 980 (D.C. Cir. 1991) (AISI).
    A standard is economically feasible if industry can absorb or pass 
on the costs

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of compliance without threatening its long-term profitability or 
competitive structure. See ATMI, 452 U.S. at 530 n. 55; AISI, 939 F.2d 
at 980. A standard is cost effective if the protective measures it 
requires are the least costly of the available alternatives that 
achieve the same level of protection. ATMI, 452 U.S. at 514 n. 32; 
International Union, UAW v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994) 
(LOTO II).
    Section 6(b)(7) authorizes OSHA to include among a standard's 
requirements labeling, monitoring, medical testing and other 
information gathering and transmittal provisions. 29 U.S.C. 655(b)(7).
    All standards must be highly protective. See 58 FR at 16614-16615; 
LOTO II, 37 F.3d at 668-669. Finally, whenever practical, standards 
shall ``be expressed in terms of objective criteria and of the 
performance desired.'' 29 U.S.C. 655(b)(5).

III. Summary and Explanation of the Proposed Rule

OSHA's Authority To Regulate

    The purpose of the following discussion is to clarify the degree to 
which OSHA has authority to regulate working conditions relating to 
explosives. A number of Federal agencies have authority to regulate 
explosives. For example, the OSH Act grants OSHA authority to create 
and enforce standards covering workplace safety and health. As part of 
its mission, OSHA currently regulates working conditions in the 
storage, sale, transportation, manufacture, and use of explosives (29 
CFR 1910.109 and 1910.119 and part 1926 subpart U). The Mine Safety and 
Health Administration is responsible for regulating the transportation, 
storage, and use of explosives at mining facilities subject to the 
Federal Mine Safety and Health Act of 1977. Its relevant regulations 
can be found at 30 CFR 56.6000 to 56.6905, 57.6000 to 57.6960, 75.1300 
to 75.1328, and 77.1300 to 77.1304. The United States Department of 
Transportation (DOT), under the Hazardous Materials Transportation Act 
(49 U.S.C. 5101 et seq.), is responsible for regulating the safe 
transportation of explosives in intrastate, interstate, and foreign 
commerce. Its regulations cover not only the movement of explosives in 
commerce but also the loading, unloading, and storage of explosives 
incidental to that movement (49 CFR parts 171 to 180 and 397).
    The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) 
regulations cover the import, manufacture, distribution, and storage of 
explosives (27 CFR part 555). Its regulations require all 
manufacturers, importers, and dealers in explosives to obtain a Federal 
license from ATF and require certain users of explosives to obtain a 
Federal permit from ATF. The Agency also regulates the safe and secure 
storage of explosives at approved facilities. The United States Coast 
Guard has regulations covering the loading, transportation, unloading, 
and stowage of explosives on vessels and at related land-side 
facilities (33 CFR part 126, 46 CFR part 194, 49 CFR parts 171 to 173 
and 176).
    The Consumer Product Safety Commission regulates consumer fireworks 
as part of its mission to protect the public from unreasonable risks of 
serious injury or death from consumer products (16 CFR parts 1500 and 
1507). Its regulations contain construction, performance, and labeling 
requirements for consumer fireworks. The Environmental Protection 
Agency, under such statutes as the Resource Conservation and Recovery 
Act (42 U.S.C. 6901 et seq.), the Clean Water Act (33 U.S.C. 1251 et 
seq.), and the Clean Air Act (42 U.S.C. 7401 et seq.), regulates 
releases and wastes involved in the manufacture, use, and disposal of 
explosives. The United States Department of the Interior's Office of 
Surface Mining is responsible for regulating blast effects, such as 
flyrock and ground vibration, near surface mines (30 CFR 816, 817, and 
850).
    Given that there are multiple federal agencies that have authority 
to regulate explosives and that there are several different aspects to 
the regulation of explosives, areas can develop where federal agency 
authorities overlap. OSHA recognizes that there is the potential for 
overlap between provisions of this NPRM and a recent Department of 
Homeland Security (DHS) proposed regulation. Pursuant to the DHS 
Appropriations Act of 2007, Public Law 109-295 (October 4, 2006), DHS 
has authority to regulate the security of chemical facilities. DHS 
published an Advance Notice of Rulemaking titled Chemical Facility 
Anti-terrorism Standards (71 FR 78276) (December 28, 2006) and will 
publish an implementing interim final rule on the matter. The DHS 
Advance Notice proposes to require high-risk chemical facilities to 
develop and implement ``Site Security Plans'' with measures that 
address their security vulnerabilities (as determined through a 
``Vulnerability Assessment'') and that address the DHS risk-based 
performance standards for security at chemical facilities. To the 
extent that any overlapping issues develop, OSHA and DHS will work to 
resolve those issues.
    The above description is not a complete listing of all the Federal 
agencies that regulate explosives. With so many agencies involved, 
confusion has occurred in the regulated community over the regulatory 
boundaries between some agencies. One issue that has arisen concerns 
the degree of overlap in OSHA and ATF regulations covering the storage 
of explosives. Another issue involves whether OSHA has the authority to 
regulate working conditions during the transportation of explosives 
when DOT and the United States Coast Guard also regulates such 
transportation. The following is a discussion of these two issues.
    OSHA's Authority to Regulate the Storage of Explosives. The OSH Act 
gives OSHA broad authority to promulgate and enforce standards to 
promote workplace safety and health. 29 U.S.C. 651. The courts have 
supported this broad interpretation of OSHA's authority. Southern 
Railway Co. v. OSHRC, 539 F.2d 335, 338 (4th Cir. 1976) cert. denied, 
429 U.S. 999 (1976) (``OSHA was enacted in response to an appalling 
record of death and disability in our industrial environment, and it 
was the clear intent of Congress to meet the problem with broad and, 
hopefully, effective legislation.''). However, OSHA's authority to 
regulate working conditions is restricted by section 4(b)(1) of the OSH 
Act (29 U.S.C. 653(b)(1)), which states that:

    Nothing in this Act shall apply to working conditions of 
employees with respect to which other Federal agencies * * * 
exercise statutory authority to prescribe or enforce standards or 
regulations affecting occupational safety or health.

    Congress enacted this provision, called the ``preemption 
provision,'' to avoid duplicative regulatory coverage between OSHA and 
other Federal agencies in the area of workplace safety and health. 
Organized Migrants in Community Action v. Brennan, 520 F.2d 1161, 1161 
(D.C. Cir. 1975). The preemption provision prevents OSHA from 
regulating working conditions when another Federal agency exercises its 
statutory authority to prescribe or enforce standards or regulations 
covering those working conditions. Chao v. Mallard Bay Drilling, Inc., 
524 U.S. 235, 241 (2002). OSHA is not preempted if another Federal 
agency has statutory authority but has not exercised that authority. 
524 U.S. at 241.
    Is OSHA preempted by ATF under the preemption provision of the OSH 
Act from regulating working conditions

[[Page 18796]]

relating to the storage of explosives? To answer this question, the 
following questions must be answered. Does ATF have statutory authority 
to regulate the storage of explosives? If so, is ATF exercising that 
authority? If so, to what extent do ATF's requirements cover the same 
working conditions as OSHA's requirements?
    Title XI of the Organized Crime Control Act of 1970, Pub.L. No. 91-
452, 84 Stat. 922, gives ATF, through the Secretary of the Treasury, 
the statutory authority to regulate the storage of explosives. Section 
1101 of Title XI states that ``[t]he Congress hereby declares that the 
purpose of this title is to protect interstate and foreign commerce 
against interference and interruption by reducing the hazard to persons 
and property arising from misuse and unsafe or insecure storage of 
explosive materials.'' 84 Stat. 952. Thus, Congress gave ATF the 
statutory authority to issue and enforce regulations to protect persons 
(including employees) from the unsafe storage of explosives. ATF has 
exercised this authority by promulgating and enforcing regulations 
covering the storage of explosives (see 27 CFR part 555).
    ATF's explosive storage regulations are very similar to OSHA's 
requirements for working conditions involved in the storage of 
explosives. Many of ATF's requirements affect the same types of working 
conditions as OSHA's requirements. The following table shows the 
overlap between ATF's regulations and OSHA's requirements for the 
storage of explosives.

------------------------------------------------------------------------
            ATF's requirements                   OSHA's requirements
------------------------------------------------------------------------
27 CFR 555.203 Types of magazines.........  29 CFR 1910.109(c)(1)(iv)
                                             and (v).
27 CFR 555.206 Location of magazines......  29 CFR 1910.109(c)(1)(vi),
                                             (vii) and (viii).
27 CFR 555.207 to .211 Construction of      29 CFR 1910.109(c)(2), (3)
 magazines.                                  and (4).
27 CFR 555.212 Smoking and open flames....  29 CFR 1910.109(c)(5)(vii).
27 CFR 555.213 Quantity and storage         29 CFR 1910.109(c)(1)(ii).
 restrictions.
27 CFR 555.214 Storage within magazines...  29 CFR 1910.109(c)(5).
27 CFR 555.215 Housekeeping...............  29 CFR 1910.109(c)(5)(iv)
                                             and (v).
27 CFR 555.216 Repair of magazines........  29 CFR 1910.109(c)(5)(vi).
27 CFR 555.217 Lighting...................  29 CFR 1910.109(c)(2)(vi).
27 CFR 555.218 to .220 Tables of distances  29 CFR 1910.109(c)(1) Table
 for storage of explosive materials.         H-21.
                                            29 CFR 1910.109(g)(4) Table
                                             H-22.
------------------------------------------------------------------------

    ATF's regulations for the storage of explosives apply to the same 
kinds of working conditions as OSHA's requirements for the storage of 
explosives. Although ATF's regulations do not always contain the same 
or similar requirements as OSHA's requirements, they cover the same 
general working conditions. In some cases, ATF's regulations include 
working conditions not covered as extensively by OSHA's requirements. 
For example, unlike OSHA's requirements, ATF's regulations contain 
separate requirements for the storage of display fireworks, pyrotechnic 
compositions, and explosive materials used in assembling fireworks (see 
27 CFR 555.221 to .224).
    In summary, ATF has statutory authority to regulate the storage of 
explosives and it exercises this statutory authority through its 
promulgation and enforcement of regulations covering explosives 
storage. Its storage regulations affect the same kinds of working 
conditions as those covered by OSHA's requirements in Sec.  1910.109. 
Therefore, OSHA has concluded that its storage requirements for 
explosives in Sec.  1910.109(c) are preempted under section 4(b)(1) of 
the OSH Act by ATF's regulations at 27 CFR part 555 subpart K. As a 
consequence, OSHA is proposing in this rulemaking to eliminate the 
provisions in Sec.  1910.109 that deal with the storage of explosives.
    OSHA is proposing to retain the provisions in Sec.  1910.109(i) 
that cover the storage of ammonium nitrate. These provisions are not 
pre-empted by ATF's explosive storage regulations in 27 CFR part 555 
subpart K because, although ammonium nitrate is a component of certain 
explosives such as ANFO, by itself, it is not an explosive. Therefore, 
it is not regulated by these ATF regulations. In addition, OSHA is also 
proposing to retain the provisions in Sec.  1910.109(j) that cover the 
storage of small arms ammunition and components of small arms 
ammunition. Although small arms ammunition and components of small arms 
ammunition, such as small arms primers and smokeless propellants, are 
explosives, ATF's explosives storage regulations do not apply to the 
storage of ammunition as defined in 27 CFR 555.11 (see 27 CFR 
555.141(a)(4)). Thus, OSHA's existing Sec.  1910.109(j) covering the 
storage of small arms ammunition and components of small arms 
ammunition are not preempted by ATF's regulations.
    Furthermore, ATF's explosives regulations (see 27 CFR 
555.141(a)(7)) do not apply to consumer fireworks as defined in 27 CFR 
555.11. These items are generally classified as UN0336, UN0337, UN0431, 
and UN0432 by DOT at 49 CFR 172.101, and generally known as consumer 
fireworks or articles pyrotechnic. These fireworks are classified as 
Class 1 Division 1.4 explosives by DOT at 40 CFR 172.101. Because ATF 
does not regulate the storage of these types of fireworks, OSHA retains 
authority to regulate their storage. At this time, however, OSHA is not 
proposing to regulate the storage of these types of fireworks in the 
proposed standard but plans to deal with them in a future rulemaking on 
pyrotechnics.
    Issue #1: As discussed above, OSHA is proposing to withdraw its 
requirements in Sec.  1910.109 covering the storage of explosives. OSHA 
is seeking comments on the following issue. Apart from small arms 
ammunition and related components, are there any explosives that are 
currently covered by the storage requirements in Sec.  1910.109 that 
are not covered by ATF's storage regulations?
    OSHA's Authority to Regulate the Transportation of Explosives. Do 
DOT and the United States Coast Guard preempt OSHA from regulating 
working conditions during the transportation of explosives? DOT 
regulates the transportation of hazardous materials, including 
explosives, by statutory authority granted to it by the Hazardous 
Materials Transportation Act (the Hazmat Act) enacted in 1975 (49 
U.S.C. 1801 et seq.). DOT has exercised this statutory authority by 
promulgating and enforcing regulations covering the transportation of 
hazardous materials (49 CFR parts 171 to 180). The United States Coast 
Guard is called to enforce these authorities during the transportation 
of hazardous materials on vessels upon the navigable waters of the 
United States. In addition, the United States Coast Guard is authorized 
to regulate the handling of dangerous cargo, including explosives, at 
waterfront facilities under 33 CFR part 126.
    In 1990, Congress amended the Hazmat Act (Pub. L. 101-615, Sec.  
2936, Nov. 16, 1990, 104 Stat. 3244) and added the following reverse 
preemption language in Sec.  1805(b)(3):

    For purposes of section 4(b)(1) of the Occupational Safety and 
Health Act of 1970 (29 U.S.C. 653(b)(1)), no action taken by the 
[DOT] Secretary pursuant to this section shall

[[Page 18797]]

be deemed to be an exercise of statutory authority to prescribe or 
enforce standards or regulations affecting occupational safety or 
health.

    The section in the Hazmat Act referred to in the reverse preemption 
language was Sec.  1805 ``Handling of hazardous materials.'' Section 
1805(a) covered the number, training, and qualifications of personnel 
involved in handling hazardous materials; the type and frequency of 
inspections; the equipment used to detect, warn, and control the risks 
posed by hazardous materials; the use of equipment and facilities 
employed in the handling and transportation of hazardous materials; and 
systems for monitoring the safety assurance procedures for transporting 
hazardous materials. Section 1805(b) included training criteria for the 
safe handling and transportation of hazardous materials. The remaining 
provisions in Sec.  1805 covered the registration, filing, and permit 
requirements for transporters of hazardous materials.
    The reverse preemption language in Sec.  1805(b)(3) of the Hazmat 
Act nullified any effect of the OSH Act's 4(b)(1) preemption provision 
over matters covered by Sec.  1805 of the Hazmat Act. Because Sec.  
1805 covered such things as the training, equipment and facilities used 
during the handling and transportation of hazardous materials, OSHA 
could regulate working conditions associated with these aspects of the 
handling and transportation of hazardous materials.
    In 1994, Congress amended and recodified the Hazmat Act to its 
current form as 49 U.S.C. chapter 51--Transportation of Hazardous 
Material, Sec.  5101 et seq. (Pub. L. 103-272, July 5, 1994, 108 Stat. 
745). Although the reverse preemption language was altered and 
recodified at Sec.  5107(f)(2), its meaning and coverage remained the 
same. Section 5107(f)(2) states:

Sec.  5107 Hazmat employee training requirements and grants

* * * * *
    (f) Relationship to other laws.
* * * * *
    (2) An action of the Secretary of Transportation under 
subsections (a)-(d) of this section and sections 5106, 5108(a)-
(g)(1) and (h), and 5109 of this title is not an exercise, under 
section 4(b)(1) of the Occupational Safety and Health Act of 1970 
(29 U.S.C. 653(b)(1)), of statutory authority to prescribe or 
enforce standards or regulations affecting occupational safety and 
health.

    Section 5106 involves criteria for the handling of hazardous 
materials and includes the following:

    The Secretary of Transportation may prescribe criteria for 
handling hazardous material, including:
    (1) a minimum number of personnel;
    (2) minimum levels of training and qualifications for personnel;
    (3) the kind and frequency of inspections;
    (4) equipment for detecting, warning of, and controlling risks 
posed by the hazardous material;
    (5) specifications for the use of equipment and facilities used 
in handling and transporting the hazardous material; and
    (6) a system of monitoring safety procedures for transporting 
the hazardous material.

    Section 5107(a) to (d) covers training requirements for employees 
working with hazardous materials. Section 5108(a) to (g)(1) and (h) 
involves registration requirements for transporting hazardous materials 
and Sec.  5109 covers safety permits for motor carriers transporting 
hazardous materials.
    Similar to the reverse preemption language in the 1990 amendments 
to the Hazmat Act, Sec.  5107(f)(2) of the 1994 amendments to the 
Hazmat Act nullifies any effect of the OSH Act's 4(b)(1) preemption 
provision over matters covered by Sec. Sec.  5106, 5107(a) to (d), 
5108(a) to (g)(1) and (h), and 5109. This allows OSHA to regulate 
working conditions relating to these matters, which include ``the use 
of equipment and facilities used in handling and transporting the 
hazardous material'' (49 U.S.C. 5106(5)). Accordingly, OSHA has the 
authority to not only regulate working conditions at facilities 
involved in the transportation of hazardous materials but also when 
equipment is used during the transportation of hazardous materials. It 
is noteworthy that the reverse preemption language in the 1994 
amendments to the Hazmat Act does not exclude DOT from also regulating 
the areas covered by Sec. Sec.  5106, 5107(a) to (d), 5108(a) to (g)(1) 
and (h), and 5109.
    The Occupational Safety and Health Review Commission examined the 
reverse preemption language in Yellow Freight Systems, Inc., 17 BNA 
OSHC 1699, 1995-97 CCH OSHD ] 31,105 (No. 93-3292, 1996). In that case, 
the operator of a freight terminal argued that OSHA's citations against 
it were invalid because OSHA was preempted from regulating working 
conditions at the terminal by DOT under the 4(b)(1) preemption 
provision of the OSH Act. The Commission disagreed with the operator 
and concluded that when Congress amended Sec.  1805(b)(3) in the 1990 
amendments to the Hazmat Act, it ``intended to nullify the preemptive 
effect of DOT actions taken under section 1805.'' Id. at 1701. It also 
made the equivalent finding about the reverse preemption language in 
the 1994 amendments to the Hazmat Act. Id. At the invitation of the 
Commission, DOT submitted its interpretation of Sec.  1805(b)(3) in the 
Yellow Freight case. DOT stated that the reverse preemption language 
``found in Sec.  1805(b)(3) * * * referred to the entirety of Sec.  
1805.'' Id. Thus, DOT agreed that OSHA was not preempted from 
regulating working conditions in those aspects of the transportation of 
hazardous materials covered by Sec.  1805.
    On October 30, 2003, DOT issued a final rule clarifying the 
application of its hazardous materials regulations to the loading, 
unloading, and storage of hazardous materials incidental to movement in 
commerce (68 FR 61906). DOT's hazardous materials regulations cover 
pre-transportation functions involving the preparation of hazardous 
materials for transportation in commerce. Id. at 61906, 61908. They 
also cover transportation functions involving the actual movement of 
hazardous materials in commerce, including the loading, unloading, and 
storage of hazardous materials that is incidental to that movement. Id. 
at 61906, 61914.
    In the preamble to the final rule, DOT noted the reverse preemption 
language at Sec.  5107(f)(2) in the 1994 amendments to the Hazmat Act 
and stated that: ``Such `reverse preemption language' functions to 
nullify any effect the OSH Act's 4(b)(1) provision might otherwise have 
and thus ensures that OSHA's standards remain applicable (68 FR 
61926).'' DOT further stated that it ``neither affirmatively 
regulate[s] the working conditions at facilities where pre-
transportation and transportation functions are performed, nor 
assert[s] comprehensive regulatory jurisdiction over the working 
conditions at these facilities. * * * This final rule makes clear that 
[DOT does] not intend to exercise [its] statutory authority in a manner 
that precludes OSHA from regulating at facilities where pre-
transportation and transportation functions are performed.'' Id. Thus, 
DOT recognizes that, through the reverse preemption language of the 
Hazmat Law, OSHA has the statutory authority to regulate working 
conditions at facilities where pre-transportation and transportation 
functions are performed.
    In its final rule, DOT did not directly address whether OSHA has 
statutory authority to regulate working conditions during the actual 
movement of hazardous materials in commerce. However, it stated that 
DOT ``has developed a special expertise that

[[Page 18798]]

makes the Department uniquely qualified to play the primary Federal 
regulatory role in the protection of employees who operate motor 
vehicles, trains, aircraft, and vessels used to transport hazardous 
materials.'' Id. at 61927.
    OSHA agrees that DOT has the unique expertise to play a lead role 
in the protection of employees during the transportation of hazardous 
materials. However, OSHA also recognizes that, through the reverse 
preemption language of Sec.  5107(f)(2) in the 1994 amendments to the 
Hazmat Act, Congress has granted OSHA statutory authority to regulate 
working conditions during the handling and transportation of hazardous 
materials. The Agency views this statutory authority to include working 
conditions during the actual movement of hazardous material in 
commerce, as well as during the preparation of hazardous materials 
prior to movement, and the loading, unloading, and temporary storage of 
hazardous material incidental to movement.
    Although OSHA has the statutory authority to regulate working 
conditions at each stage in the transportation of hazardous materials, 
the Agency is not required to exercise that authority. OSHA recognizes 
DOT and the United States Coast Guard's extensive regulatory expertise 
and coverage in the area of the safe transportation of hazardous 
materials. The Agency also believes it is important to avoid 
duplicative or conflicting regulatory requirements between federal 
agencies. As a result, OSHA has no current plans to expand its 
regulation of working conditions during the transportation of hazardous 
materials.
    The following preamble discussion explains significant changes made 
in the proposal to the existing standard. The proposed standard changes 
the title of 29 CFR 1910.109 from ``Explosives and Blasting Agents'' to 
``Explosives.'' Since the proposal includes blasting agents in the 
definition of explosives (discussed below), it is no longer appropriate 
for the title of the section to include both terms.
    This proposed rule contains a complete revision and re-organization 
of existing Sec.  1910.109. In addition to requesting comments on any 
of the requirements in the proposed standard, OSHA has identified 
issues throughout the preamble and has requested comments on these 
issues.
    OSHA's development of the proposed rule was based in part on the 
2001 edition of NFPA 495--Explosive Materials Code. NFPA has recently 
issued a 2006 edition of this code. OSHA has compared the differences 
between the 2001 and 2006 editions. Any significant changes relevant to 
the proposed rule in the 2006 edition compared to the 2001 edition are 
discussed at the appropriate location in the preamble. OSHA is 
interested in comments on whether there are any requirements in the 
2006 edition of NFPA 495 that should be in the proposed rule but have 
not been included.
    The proposed rule references DOT regulations in several provisions. 
OSHA has included these references to DOT regulations to ensure that 
the proposed rule is consistent with DOT's regulations. However, OSHA 
is interested in comments on whether such DOT references should be 
retained, excluded, or replaced with an alternative in the final rule. 
If you think some or all of the references to DOT regulations should be 
replaced with an alternative, please provide the alternative language 
for the affected provisions in the proposed rule.
    As an aid to understanding the changes in the proposed rule, a 
table, ``Proposed Reorganization of Existing Requirements,'' has been 
placed in the docket (Ex. 2-22) listing the requirements in the 
existing standard and identifying where they are located in the 
proposed rule. In addition, a second table, ``New Requirements in 
Proposed Rule,'' has been placed in the docket (Ex. 2-23) listing all 
the new provisions in the proposed rule that are not in the existing 
standard.
    Paragraph (a) Scope. Proposed paragraph (a) defines the 
applicability of Sec.  1910.109, and has been moved from existing 
paragraph (k), at the end of the standard, to the beginning of the 
proposed standard. This change enables a reader to quickly determine 
the applicability of the standard.
    Proposed paragraph (a)(1) would apply this section to the 
manufacture, storage, sale, transportation, handling, and use of 
explosives, including blasting agents and pyrotechnics. The proposed 
paragraph is similar to existing paragraph (k)(1) except in three ways. 
First, for ease of compliance, each of the multiple requirements in 
existing paragraph (k)(1) has been moved to a separate proposed 
paragraph. As a result, the requirement in existing paragraph (k)(1) on 
the applicability of the standard to the use of explosives in medicines 
and medicinal agents has been moved to proposed paragraph (a)(3)(ii). 
The requirement in existing paragraph (k)(1) on the applicability of 
the standard to the sale and use of pyrotechnics has been moved to 
proposed paragraph (a)(3)(iii).
    Second, proposed paragraph (a)(1) has been rewritten for clarity. 
For example, ambiguous terms such as ``keeping'' and ``having'' in 
existing paragraph (k)(1) have been removed in proposed paragraph 
(a)(1). OSHA believes the proposed language is clearer and more concise 
than the existing language, and will enhance compliance.
    Third, the application of this section to storage has been removed. 
The reason for this is explained in the OSHA's Authority to Regulate 
discussion above.
    Proposed paragraph (a)(2) requires the employer to comply with 
Sec.  1910.119, Process Safety Management (PSM), for operations 
involving the manufacture of explosives, as defined in proposed 
paragraph (b). The proposed paragraph revises the requirements in 
existing paragraph (k)(2), which requires the manufacture of 
explosives, as defined in existing paragraph (a)(3), to comply with the 
requirements of Sec.  1910.119.
    The proposal deletes existing paragraph (k)(3) which requires the 
manufacture of pyrotechnics, as defined in existing paragraph (a)(10), 
to comply with the requirements of Sec.  1910.119. Paragraph (b) of the 
proposed standard defines pyrotechnics as explosives (see discussion 
below on proposed paragraph (b)). Thus, it is no longer necessary to 
have one provision requiring that the manufacture of explosives comply 
with Sec.  1910.119 and another provision requiring that the 
manufacture of pyrotechnics comply with Sec.  1910.119. Proposed 
paragraph (a)(2) requiring that the manufacture of explosives comply 
with Sec.  1910.119 covers all explosives as defined in proposed 
paragraph (b), including pyrotechnics.
    Under both the existing standard (existing paragraph (k)) and the 
proposed standard (proposed paragraph (a)(2)), the manufacture of 
blasting agents does not have to comply with the PSM standard at Sec.  
1910.119. The existing standard does not define blasting agents as 
explosives but the proposed standard classifies them as Class 1 
Division 1.5 explosives (see discussion below on proposed paragraph 
(b)). Even though the proposed standard includes blasting agents as 
explosives and requires that the manufacture of explosives comply with 
Sec.  1910.119, OSHA in proposed paragraph (a)(2) is specifically 
excluding blasting agents from the requirements of Sec.  1910.119. This 
exclusion includes water gels, slurries, and emulsions classified as 
Class 1 Division 1.5 explosives.
    The PSM standard was developed to safeguard employees from 
catastrophic releases of toxic, reactive, flammable, or

[[Page 18799]]

explosive chemicals (see Sec.  1910.119 Purpose). Blasting agents, as 
Class 1 Division 1.5 explosives, are very insensitive and have a very 
low probability of causing an unintended mass explosion. For this 
reason, OSHA has concluded that blasting agents, unlike Division 1.1 to 
1.4 explosives, do not pose the potential catastrophic consequences to 
employees required of chemicals subject to Sec.  1910.119 and should be 
excluded from the PSM standard. However, if one or more ingredients of 
a blasting agent is otherwise classified as an explosive (i.e., as a 
Division 1.1, 1.2, 1.3, or 1.4 explosive), then the manufacturing 
process for that blasting agent would be required to comply with Sec.  
1910.119. Although the manufacture of blasting agents is not subject to 
the PSM standard, both the existing standard at Sec.  1910.109(g) and 
(h) and the proposed standard at Sec.  1910.109(c) and (g) have 
requirements covering the safe manufacture of blasting agents.
    Proposed paragraph (a)(3)(i) clarifies that Sec.  1910.109, as a 
general industry standard, does not apply to construction work covered 
by 29 CFR part 1926. This paragraph is new but does not change the 
scope of the existing standard because the existing standard also does 
not apply to construction work. Subpart U of 29 CFR part 1926 
specifically addresses blasting and the use of explosives in the 
construction industry. OSHA believes the proposed language clarifies 
the scope of the proposed standard and addresses some confusion on the 
issue that was revealed during discussions with stakeholders.
    Proposed paragraph (a)(3)(ii) states that this section does not 
apply to the use of explosives in medicines and medicinal agents in the 
forms prescribed by the official United States Pharmacopeia and the 
National Formulary (USP-NF). The USP-NF is available from the United 
States Pharmacopeial Convention, Inc., 12601 Twinbrook Parkway, 
Rockville, MD, 20852. The proposal continues the existing standard's 
exclusion of medicines and medical agents containing explosives from 
the standard's requirements. For ease of compliance, this exclusion was 
separated from other requirements within existing paragraph (k)(1) and 
made into a separate proposed paragraph (a)(3)(ii). The proposed 
language is similar to the existing exclusion, and was modified to be 
consistent with paragraph 1.1.7 of the 2001 edition of NFPA 495 (Ex. 2-
5).
    Proposed paragraph (a)(3)(iii) states that the section does not 
apply to the use or sale of both public display and consumer 
pyrotechnics. For ease of compliance, this requirement was separated 
from other requirements within existing paragraph (k)(1) and is 
proposed as paragraph (a)(3)(iii). The application of the proposed 
paragraph has not changed from that of existing (k)(1). However, OSHA 
has revised the paragraph to clarify that the proposed standard does 
not apply to the use or sale of both public display and consumer 
fireworks. Note that, although they are not covered by the existing or 
proposed Sec.  1910.109 standard, OSHA has the authority to regulate 
the use of public display fireworks and the sale of public display and 
consumer fireworks. However, the use of consumer fireworks by the 
public does not fall within OSHA's authority to regulate workplace 
safety and health. OSHA believes the proposed language is clearer than 
the existing language in paragraph (k)(1).
    Since the initial publication of Sec.  1910.109, NFPA has published 
three codes for the use and sale of pyrotechnics: (1) NFPA 1123-2000--
Code for Fireworks Display; (2) NFPA 1124-2003--Code for the 
Manufacture, Storage, and Retail Sales of Fireworks and Pyrotechnic 
Articles; and (3) NFPA 1126-2001--Standard for the use of Pyrotechnics 
before a Proximate Audience. In the future, OSHA intends to conduct 
further rulemaking based upon these NFPA codes and at that time will 
modify the scope of Sec.  1910.109 to include the sale of both public 
display pyrotechnics and consumer fireworks and the use of pyrotechnics 
at public displays. Unless otherwise stated, the provisions of the 
proposed rule, like those in the current rule, apply to pyrotechnics as 
well as to other types of explosives. In addition, the proposal 
continues to apply OSHA's PSM regulations to the manufacture of 
pyrotechnics as discussed in proposed paragraph (a)(2) above. However, 
OSHA has decided, because of time and resource constraints, to address 
additional issues regarding pyrotechnics in a separate rulemaking. OSHA 
believes that trying to expand pyrotechnics coverage in the current 
rulemaking would result in significant delay in providing needed 
protection from explosives hazards. Proposed paragraph (i) is being 
reserved for this future pyrotechnics rulemaking.
    Paragraph (b) Definitions applicable to this section. Paragraph (b) 
lists and defines all major terms used in the proposed standard. Some 
of the proposed definitions are the same as those in the existing 
standard, while others have been reworded. Some definitions are new and 
some have not been retained from the existing standard.

New Definitions

    Upon consideration of technological developments in the explosives 
field, the plain language initiative, inconsistencies in definitions 
among Federal agencies, and definitions used in relation to public 
safety versus employee safety, OSHA proposes the following new 
definitions:
    Blast area. OSHA is proposing to define this term to mean the area 
of a blast within the influence of flying rock or other debris, gases, 
and concussion. This term is commonly used in the explosives industry 
and is being added to the proposal to clarify its safety requirements 
for blasting operations. The use of the term in the proposal is 
consistent with its use in the 2001 edition of NFPA 495 (Ex. 2-5).
    Blast site. This term would be defined to mean the area where 
explosives are handled during the preparation and loading of drill 
holes, including 50 feet (15.2 m) in all directions from the perimeter 
formed by loaded holes. The 50-foot distance requirement, applies in 
all directions along the full depth of the drill hole and the blast 
site exists until the explosives are detonated. This term is commonly 
used in the explosives industry and is being added to the proposal to 
clarify its safety requirements for blasting operations. The use of the 
term in the proposal is consistent with its use in the 2001 edition of 
NFPA 495 (Ex. 2-5).
    Issue #2: In subsequent discussions with the Institute of Makers of 
Explosives (IME) following their submission of the Petition, they 
recommended that OSHA revise the definition of blast site to decrease 
the 50-foot requirement to 30 feet if ``the perimeter of loaded holes 
is marked and separated from non-blast site areas by a barrier.'' IME 
would define a barrier as a ``material object or objects that 
separates, keeps apart, or demarcates in a conspicuous manner such as 
cones or a warning sign or tape.'' OSHA, however, is concerned that 
simply installing a barrier, as defined by IME, at a blast site may not 
provide the degree of safety needed to allow employees to be as close 
as 30 feet to explosion hazards. OSHA requests specific comments on the 
IME recommendation.
    Blaster-in-charge. OSHA would define this term to mean the person 
in charge of the handling, loading, and firing of explosives within the 
blast site and blast area. This term is intended to identify a person 
designated by the employer to be in charge of the

[[Page 18800]]

handling, loading, and firing of explosives.
    The 2001 edition of NFPA 495 (Ex. 2-5) does not use the term 
``blaster-in-charge'' but uses the term ``blaster'' as a person 
``qualified to be in charge of and responsible for the loading and 
firing of a blast.'' While NFPA 495 does not specifically require one 
person to be in charge of the blast area, the definition of blaster-in-
charge in the proposed standard requires that one person is in charge 
of the blast area and the blast site. This is being done to enhance 
safety by centralizing control in one person. The proposed term 
``blaster-in-charge'' is based upon a recommendation in the Petition 
(Ex. 2-1).
    Bulk delivery vehicle. This term would be defined to mean any 
vehicle that transports blasting agents or their ingredients, in bulk 
form. Bulk delivery vehicles may also be capable of mixing ingredients 
to form blasting agents and loading blasting agents directly into drill 
holes. For example, bulk delivery vehicles may contain ammonium nitrate 
and a fuel oil in separate compartments and mix the two to form a 
blasting agent just before the blasting agent is transferred into the 
drill hole. The bulk delivery vehicle may also be capable of adding an 
emulsion to the mixture. The bulk delivery vehicle will either auger or 
pump the blasting agent into the drill hole. This definition is 
intended to provide clarity and reflects technological advancements in 
bulk blasting agent delivery methods.
    Competent person. This term would be defined by OSHA to mean an 
employee designated by the employer who, by way of training and/or 
experience, is knowledgeable of applicable standards, is capable of 
identifying workplace hazards relating to explosives, and has authority 
to take appropriate corrective actions to control such hazards. 
Although not defined, this term is used in the existing standard at 
(c)(5)(viii), (c)(5)(ix), (d)(2)(iii)(b), and (g)(5)(vii). Defining the 
term in the proposed standard enhances safety by clearly stating the 
required qualifications of the competent person.
    Detonator. OSHA is proposing to define this term to mean any device 
containing an initiating or primary explosive that is used for 
initiating detonation in another explosive material. A detonator may 
not contain more than .35 ounces (10 grams) of total explosives by 
weight, excluding ignition or delay charges. The term includes, but is 
not limited to, electric blasting caps of instantaneous and delay 
types, electronic detonators, blasting caps for use with safety fuse, 
detonating cord delay connectors, and nonelectric instantaneous and 
delay blasting caps which use detonating cord, shock tube, or any other 
replacement for electric leg wires. Although the term is used in the 
existing standard in paragraph (e)(1)(ii), it is not defined. The 
proposed standard defines the term to enhance regulatory clarity and to 
reflect recent technological advances in detonation methods.
    Electric detonator. OSHA is proposing that this term be defined as 
a detonator designed for, and capable of, initiation by means of an 
electric current. This term is reflective of recent technological 
advancements in detonation methods.
    Electronic detonator. OSHA would define this term to mean a 
detonator that utilizes stored electrical energy as a means of powering 
an electronic timing delay element/module and that provides initiation 
energy for firing the base charge. This term is reflective of recent 
technological advancements in detonation methods.
    Emulsion. This term would be defined to mean an explosive that 
either contains substantial amounts of oxidizer dissolved in water 
droplets that are surrounded by an immiscible fuel, or contains 
droplets of an immiscible fuel that are surrounded by water containing 
substantial amounts of oxidizer. Emulsions, depending on their 
properties, are classified as Division 1.1 explosives or Division 1.5 
blasting agents. This term has been added due to the development and 
routine use of emulsions by the industry, and is based upon a 
recommendation in the Petition (Ex. 2-1).
    Hot work. OSHA is proposing to define this term to mean any work 
involving electric or gas welding, cutting, brazing, or similar flame 
or spark-producing operations. This term is consistent with the 
definition in the PSM standard (Sec.  1910.119(b)).
    Vehicle. This term would be defined by OSHA to mean any motor 
vehicle, machine, tractor, trailer, or semi-trailer propelled or drawn 
by mechanical power and used in the transportation of explosives. This 
replaces the existing definition of ``motor vehicle.'' Unlike the 
existing definition of ``motor vehicle,'' the proposed definition does 
not contain the word ``highway'' bec