Commerce in Explosives-Storage of Shock Tube With Detonators (2005R-3P), 3160-3163 [2010-891]
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ACTION:
Federal Register / Vol. 75, No. 12 / Wednesday, January 20, 2010 / Rules and Regulations
Correcting amendment.
DEPARTMENT OF THE TREASURY
SUMMARY: This document contains a
correction to final regulations (TD 9475)
that were published in the Federal
Register on Friday, December 18, 2009
(74 FR 67053) providing guidance
regarding the qualification of certain
transactions as reorganizations
described in section 368(a)(1)(D) where
no stock and/or securities of the
acquiring corporation is issued and
distributed in the transaction.
DATES: This correction is effective on
January 20, 2010, and is applicable on
December 18, 2009.
FOR FURTHER INFORMATION CONTACT:
Bruce A. Decker, (202) 622–7790 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Background
The final regulations (TD 9475) that
are the subject of this document are
under sections 358, 368 and 1502 of the
Internal Revenue Code.
Need for Correction
As published, the final regulations
(TD 9475) contain an error that may
prove to be misleading and is in need
of clarification.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and
recordkeeping requirements.
Correction of Publication
Authority: 26 U.S.C. 7805 * * *
Par. 2. Section 1.368–2 is amended by
revising paragraph (l)(2)(iv) to read as
follows:.
■
Definition of terms.
*
*
*
*
(l) * * *
(2) * * *
(iv) Exception. Paragraph (l)(2) of this
section does not apply to a transaction
otherwise described in § 1.358–6(b)(2).
*
*
*
*
*
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*
Guy R. Traynor,
Acting Chief, Publications and Regulations
Branch, Legal Processing Division, Associate
Chief Counsel, (Procedure and
Administration).
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15:59 Jan 19, 2010
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[TD 9475]
[FR Doc. 2010–869 Filed 1–19–10; 8:45 am]
RIN 1545–BF83
BILLING CODE 4830–01–P
Corporate Reorganizations;
Distributions Under Sections
368(a)(1)(D) and 354(b)(1)(B);
Correction
DEPARTMENT OF JUSTICE
Internal Revenue Service (IRS),
Treasury.
ACTION: Correction to final regulations.
AGENCY:
This document contains
corrections to final regulations (TD
9475) that were published in the
Federal Register on Friday, December
18, 2009 (74 FR 67053) providing
guidance regarding the qualification of
certain transactions as reorganizations
described in section 368(a)(1)(D) where
no stock and/or securities of the
acquiring corporation is issued and
distributed in the transaction.
DATES: This correction is effective on
January 20, 2010, and is applicable on
December 18, 2009.
FOR FURTHER INFORMATION CONTACT:
Bruce A. Decker, (202) 622–7790 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
SUMMARY:
Need for Correction
Paragraph 1. The authority citation
for part 1 continues to read in part as
follows:
■
BILLING CODE 4830–01–P
26 CFR Part 1
The final regulations (TD 9475) that
are the subject of this document are
under sections 358, 368 and 1502 of the
Internal Revenue Code.
PART 1—INCOME TAXES
[FR Doc. 2010–866 Filed 1–19–10; 8:45 am]
Guy R. Traynor,
Acting Chief, Publications and Regulations
Branch, Legal Processing Division, Associate
Chief Counsel, Procedure and
Administration.
Background
Accordingly, 26 CFR part 1 is
corrected by making the following
correcting amendment:
■
§ 1.368–2
Internal Revenue Service
and replaced with the language ‘‘the rule
that if the same person or’’ in its place.
As published, the final regulations
(TD 9475) contain errors that may prove
to be misleading and are in need of
clarification.
Correction of Publication
Accordingly, the publication of the
final regulations (TD 9475), which were
the subject of FR Doc. E9–30170, is
corrected as follows:
1. On page 67054, column 1, in the
preamble, under the paragraph heading
‘‘Background’’, line 12 from the bottom
of the column, the language ‘‘transaction
if the same persons or’’ is removed and
replaced with the language ‘‘transaction
if the same person or’’ in its place.
2. On page 67055, column 2, in the
preamble, under the paragraph heading
‘‘Issuance of Nominal Share’’, line 9
from the bottom of the third paragraph
of the column, the language ‘‘the rule
that if the same persons or’’ is removed
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Bureau of Alcohol, Tobacco, Firearms,
and Explosives
27 CFR Part 555
[Docket No. ATF 15F; AG Order No. 3133–
2010]
RIN 1140–AA30
Commerce in Explosives—Storage
of Shock Tube With Detonators
(2005R–3P)
AGENCY: Bureau of Alcohol, Tobacco,
Firearms, and Explosives (ATF),
Department of Justice.
ACTION: Final rule.
SUMMARY: The Department of Justice is
amending the regulations of the Bureau
of Alcohol, Tobacco, Firearms, and
Explosives (ATF) by allowing shock
tube to be stored with detonators
because these materials when stored
together do not pose a mass detonation
hazard. Shock tube is a small diameter
plastic laminate tube coated with a very
thin layer of explosive material. When
initiated, it transmits a low energy wave
from one point to another. The outer
surface of the tube remains intact during
and after functioning.
DATES: This rule is effective March 22,
2010.
FOR FURTHER INFORMATION CONTACT:
James P. Ficaretta, Enforcement
Programs and Services, Bureau of
Alcohol, Tobacco, Firearms, and
Explosives, U.S. Department of Justice,
99 New York Avenue, NE., Washington,
DC 20226; telephone: (202) 648–7094.
SUPPLEMENTARY INFORMATION:
I. Background
ATF is responsible for implementing
Title XI, Regulation of Explosives (18
United States Code (U.S.C.) chapter 40),
of the Organized Crime Control Act of
1970. One of the stated purposes of the
Act is to reduce the hazards to persons
and property arising from misuse and
unsafe or insecure storage of explosive
materials. Under section 847 of title 18,
U.S.C., the Attorney General ‘‘may
prescribe such rules and regulations as
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Federal Register / Vol. 75, No. 12 / Wednesday, January 20, 2010 / Rules and Regulations
he deems reasonably necessary to carry
out the provisions of this chapter.’’
Regulations that implement the
provisions of chapter 40 are contained
in title 27, Code of Federal Regulations
(CFR), part 555 (‘‘Commerce in
Explosives’’).
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II. Notice of Proposed Rulemaking
On January 29, 2003, ATF published
in the Federal Register a notice of
proposed rulemaking (NPRM) soliciting
comments from the public and industry
on a number of proposals to amend the
regulations in part 555 (Notice No. 968,
68 FR 4406).1 ATF issued the NPRM, in
part, pursuant to the Regulatory
Flexibility Act (RFA), which requires an
agency to review, within ten years of
publication, rules for which an agency
prepared a final regulatory flexibility
analysis addressing the impact of the
rule on small businesses or other small
entities. Notice No. 968 proposed
amendments to the regulations that
were initiated by ATF and amendments
proposed by members of the explosives
industry. In particular, ATF proposed to
amend the regulations regarding the
storage of shock tube. In general,
§ 555.213(b) provides that detonators are
not to be stored in the same magazine
with other explosive materials.
However, in a type 4 magazine,
detonators that will not mass detonate
may be stored with electric squibs,
safety fuse, igniters, and igniter cord.
ATF proposed to amend § 555.213(b) to
allow shock tube to be stored in a type
4 storage magazine with detonators that
will not mass detonate because these
materials when stored together do not
pose a mass detonation hazard.
The comment period for Notice No.
968, initially scheduled to close on
April 29, 2003, was extended until July
7, 2003, pursuant to ATF Notice No. 2
(68 FR 37109, June 23, 2003). ATF
received approximately 1,640 comments
in response to Notice No. 968. This final
rule addresses only one of the subjects
included in Notice No. 968, the
proposal regarding the storage of shock
tube. The remaining proposals made in
Notice No. 968 may be addressed
separately.
III. Analysis of Comments and Decision
Sixty-one (61) comments addressed
ATF’s proposal to allow shock tube to
be stored in a type 4 storage magazine
with detonators that will not mass
detonate. One commenter objected to all
the proposed amendments in Notice No.
968 and expressed specific concerns
1 The regulations previously codified in 27 CFR
part 55 were designated as part 555 in 2003 in
connection with the transfer of ATF to the
Department of Justice.
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with respect to certain proposals.
However, the commenter did not
specifically address ATF’s proposal
relating to the storage of shock tube.
Fifty-six (56) commenters offered
general support for ATF’s proposal,
while four commenters expressed
specific support for the proposed
amendment.
As stated in its comment, the Institute
of Makers of Explosives (IME)
represents United States manufacturers
of explosives, as well as other
companies that distribute explosives or
provide related services. According to
IME, over 2.5 million metric tons of
explosives are used annually in the
United States, of which IME member
companies produce over 95 percent,
which have an estimated value in excess
of $1 billion annually. IME supported
the proposed amendment, stating that it
has made several requests to allow
shock tube to be stored with detonators,
and highlighting the fact that shock tube
manufactured with a detonator attached
is currently permitted to be stored with
detonators.
The Colorado Division of Oil and
Public Safety, which is the State of
Colorado’s regulatory enforcement
authority for the manufacturing, sale,
transportation, storage, and use of
commercial explosives in non-mining
related operations, supported the
proposed amendment and stated it was
‘‘long overdue.’’
The Alliance of Special Effects &
Pyrotechnic Operators, Inc., an
organization of special effects
professionals who work in motion
pictures, television, and on stage, also
expressed support for the proposed
amendment, characterizing it as
‘‘reasonable in view of the nature of
shock tubing.’’
A federally licensed explosives dealer
specifically supported the proposed
amendment and asserted that it does not
pose a safety risk.
Accordingly, this final rule adopts
without change the proposed
amendment with respect to shock tube.
How This Document Complies With the
Federal Administrative Requirements
for Rulemaking
A. Executive Order 12866
This rule has been drafted and
reviewed in accordance with Executive
Order 12866, Regulatory Planning and
Review section 1(b). The Department of
Justice has determined that this rule is
not a ‘‘significant regulatory action’’
under section 3(f) of Executive Order
12866 and accordingly this rule has not
been reviewed by the Office of
Management and Budget. This rule will
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not have an annual effect on the
economy of $100 million, nor will it
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health, public
safety, or State, local, or tribal
governments or communities.
Accordingly, this rule is not an
‘‘economically significant’’ rulemaking
as defined by Executive Order 12866.
Further, the Department has assessed
both the costs and benefits of this rule
as required by Executive Order 12866,
section 1(b)(6), and has made a reasoned
determination that there will be no
financial costs incurred by explosives
industry members associated with this
final rule. Comments received in
response to the notice of proposed
rulemaking did not indicate any
concern regarding the financial impact
of the implementation of this aspect of
the proposed rule. The Department
believes any financial impact will
benefit the explosives industry by
reducing the number of explosives
magazines used exclusively to store
shock tube. The final rule will provide
explosives industry members with the
option to consolidate detonators and
shock tube into fewer explosive storage
magazines, therefore alleviating the
additional cost of maintaining separate
magazines for each explosive product.
ATF estimates the average cost for a
new type 4 magazine (4 feet x 4 feet x
4 feet) at $3,000. Not only will the final
rule reduce the overall cost incurred by
industry members because of the
requirement to maintain fewer
magazines, but explosives industry
members will increase savings by
decreasing the number of employeehours spent maintaining magazines that
are used solely for the storage of shock
tube.
According to the most recent
information from the U.S. Bureau of
Labor Statistics, explosives workers,
ordnance handling experts, and blasters
make an average hourly wage of $20.68.
ATF estimates that an average of 1⁄2 hour
per week is spent maintaining each
separate magazine. Magazine
maintenance includes but is not limited
to security, housekeeping, and repairs.
ATF estimates that explosives industry
members eliminating one magazine will
incur an annual yearly savings of
approximately $500.
Many non-electric detonators are
currently manufactured with shock tube
attached as an integral part of the
initiation system. ATF has determined
that non-mass detonating detonators
that are affixed with shock tube as an
integral part of the initiation system can
be stored in a type 4 magazine, as long
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as the explosives remain in a non-mass
detonating packaged configuration. This
final rule will provide consistency to
the enforcement of federal law by
allowing individuals or companies to
store shock tube with non-mass
detonating detonators regardless of
whether they were integrated during the
manufacturing process. Additionally,
ATF has consistently approved variance
requests from explosives industry
members for the storage of shock tube
with non-mass detonating detonators in
a type 4 magazine because it does not
pose a mass detonation hazard.
Until ATF implements this final rule
relating to shock tube, explosives
industry members will continue to incur
unnecessary costs by not being able to
utilize all available storage space in
each explosives storage magazine and
having to maintain additional
magazines. Further, this final rule will
alleviate these unnecessary burdens on
individuals or businesses wishing to
establish new explosives companies.
ATF believes this final rule will provide
current and future explosives industry
members with greater flexibility in their
explosives storage operations without
mandating costly changes in their
current or proposed operating
procedures.
B. Executive Order 13132
This rule will not have substantial
direct effects on the States, on the
relationship between the Federal
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, the Attorney General has
determined that this regulation does not
have sufficient federalism implications
to warrant the preparation of a
federalism summary impact statement.
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C. Executive Order 12988
This rule meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil
Justice Reform.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 605(b)) requires an agency to
conduct a regulatory flexibility analysis
of any rule subject to notice and
comment rulemaking requirements
unless the agency certifies that the rule
will not have a significant economic
impact on a substantial number of small
entities. Small entities include small
businesses, small not-for-profit
enterprises, and small governmental
jurisdictions. The Attorney General has
reviewed this regulation and, by
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approving it, certifies that this rule will
not have a significant economic impact
on a substantial number of small
entities.
Individuals or companies storing
shock tube will not be affected
adversely by this final rule because it
allows these entities to voluntarily make
modifications to their current explosive
operations. There will be no mandated
changes as a result of this final rule.
Therefore, any costs associated with the
implementation of the final rule will be
incurred at the discretion of each
individual explosives industry member.
Since 2004, there have been 24
instances in which explosives industry
members were storing shock tube in the
same magazine with detonators, which
is currently a violation of the federal
explosives regulations. Those 24
instances involved a total of
approximately 470,650 feet of shock
tube. Twenty of the 24 instances
involved companies that ATF would
classify as small- or medium-sized
businesses. In each instance, the
explosives industry member was
required to utilize employee-hours to
move the shock tube into another
magazine. Of these 20 small- or
medium-sized companies, 4 were
required to attend a warning conference
with ATF officials and 6 received an
ATF recall inspection, in part because of
the violation received for the improper
storage of shock tube with detonators.
Each industry member was required to
dedicate company resources, including
employee work hours, to attend the
required meetings or be present during
another ATF inspection.
As mentioned earlier in the preamble,
the most recent information from the
U.S. Bureau of Labor Statistics,
explosives workers, ordnance handling
experts, and blasters make an average
hourly wage of $20.68. The final rule
will eliminate the need for small- or
medium-sized entities to utilize
employee hours during warning
conferences and recall inspections that
are initiated as a result of these industry
members storing shock tube and
detonators in the same magazine.
Until ATF implements this final rule
with respect to shock tube, explosives
industry members, including smallsized explosives companies, will
continue to incur costs associated with
the unnecessary movement and separate
storage requirements of shock tube due
to current explosive regulations.
Further, implementation of this final
rule will alleviate these unnecessary
burdens on individuals or businesses
wishing to establish new explosives
companies, some of which will be small
entities. ATF believes this final rule will
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provide current and future explosives
industry members with greater
flexibility in their explosives storage
operations without mandating costly
changes in their current or proposed
operating procedures.
E. Small Business Regulatory
Enforcement Fairness Act of 1996
This rule is not a major rule as
defined by section 251 of the Small
Business Regulatory Enforcement
Fairness Act of 1996, 5 U.S.C. 804. This
rule will not result in an annual effect
on the economy of $100 million or
more; a major increase in costs or prices;
or significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
companies to compete with foreignbased companies in domestic and
export markets.
F. Unfunded Mandates Reform Act of
1995
This rule will not result in the
expenditure by State, local, and tribal
governments, in the aggregate, or by the
private sector of $100 million or more
in any one year, and it will not
significantly or uniquely affect small
governments. Therefore, no actions were
deemed necessary under the provisions
of the Unfunded Mandates Reform Act
of 1995.
G. Paperwork Reduction Act
This final rule does not impose any
new reporting or recordkeeping
requirements under the Paperwork
Reduction Act.
Disclosure
Copies of the notice of proposed
rulemaking, all comments received in
response to the NPRM, and this final
rule will be available for public
inspection by appointment during
normal business hours at: ATF Reading
Room, Room 1E–063, 99 New York
Avenue, NE., Washington, DC 20226;
telephone: (202) 648–7080.
Drafting Information
The author of this document is James
P. Ficaretta; Enforcement Programs and
Services; Bureau of Alcohol, Tobacco,
Firearms, and Explosives.
List of Subjects in 27 CFR Part 555
Administrative practice and
procedure, Authority delegations,
Customs duties and inspection,
Explosives, Hazardous materials,
Imports, Penalties, Reporting and
recordkeeping requirements, Safety,
Security measures, Seizures and
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forfeitures, Transportation, and
Warehouses.
Authority and Issuance
Accordingly, for the reasons discussed
in the preamble, 27 CFR Part 555 is
amended as follows:
■
PART 555—COMMERCE IN
EXPLOSIVES
1. The authority citation for 27 CFR
Part 555 continues to read as follows:
■
Authority: 18 U.S.C. 847.
§ 555.213
[Amended]
2. Section 555.213 is amended by
adding ‘‘shock tube,’’ after ‘‘safety fuse,’’
in paragraph (b)(1).
■
Dated: January 13, 2010.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2010–891 Filed 1–19–10; 8:45 am]
BILLING CODE 4410–FY–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 21
RIN 2900–AN13
Vocational Rehabilitation and
Employment Program—Basic
Entitlement; Effective Date of Induction
Into a Rehabilitation Program;
Cooperation in Initial Evaluation
Department of Veterans Affairs.
Final rule.
AGENCY:
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ACTION:
SUMMARY: This document amends
Vocational Rehabilitation and
Employment Program regulations of the
Department of Veterans Affairs (VA).
Specifically, it amends provisions
concerning: Individuals’ basic
entitlement to vocational rehabilitation
benefits and services; effective dates of
induction into a rehabilitation program,
including retroactive induction; and
individuals’ cooperation and lack of
cooperation in the initial evaluation
process. The amendments are intended
to update pertinent regulations to reflect
changes in law, to provide VA’s
interpretation of applicable law, and to
improve clarity.
DATES: Effective Date: This final rule is
effective February 19, 2010.
Applicability Dates: Except as noted
in the Supplementary Information
section, the provisions of this final rule
apply to claims pending on February 19,
2010.
FOR FURTHER INFORMATION CONTACT:
Alvin Bauman, Senior Policy Analyst,
Vocational Rehabilitation and
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Employment Service (28), Veterans
Benefits Administration, Department of
Veterans Affairs, 810 Vermont Ave.,
NW., Washington, DC 20420, (202) 461–
9613.
SUPPLEMENTARY INFORMATION: In a
document published in the Federal
Register on May 8, 2009 (74 FR 21565),
we proposed to amend VA’s vocational
rehabilitation and employment
regulations. We provided a 60-day
comment period for the proposed rule
that ended on July 7, 2009. We received
no comments.
In 38 CFR part 21, Subpart A—
Vocational Rehabilitation Under 38
U.S.C. Chapter 31, we are revising
§ 21.40 concerning basic entitlement to
vocational rehabilitation benefits and
services; § 21.282 concerning effective
dates of induction into a rehabilitation
program; and § 21.50(d) concerning
cooperation and lack of cooperation in
the initial evaluation process. VA
previously addressed and implemented
changes to services provided under 38
U.S.C. chapter 31, which resulted from
a court decision and the enactment of
Public Law 104–275, the Veterans
Benefits Improvement Act of 1996. This
included VA’s issuance of Circular 28–
97–1 in 1997 (last revised in October
2004) to provide guidance regarding the
implementation of these changes. This
final rule will update 38 CFR part 21
consistent with current practice. In
addition, the final rule will make other
non-substantive changes.
Basic Entitlement to Vocational
Rehabilitation Benefits and Services
We are revising § 21.40 to include
criteria, effective October 1, 1993, for
vocational rehabilitation basic
entitlement determinations resulting
from the Veterans’ Benefits Act of 1992
(Pub. L. 102–568), enacted October 29,
1992. Public Law 102–568 amended 38
U.S.C. 3102(2) to entitle veterans to
vocational rehabilitation if they have a
10 percent service-connected disability
and are determined by the Secretary of
Veterans Affairs to be in need of
rehabilitation due to a serious
employment handicap. Further, the
changes to § 21.40 are intended to
reflect the provisions of section 602(c)
of the Veterans Benefits Improvement
Act of 1994 (Pub. L. 103–446), which
amended section 404(b) of Public Law
102–568 with a technical correction,
effective October 29, 1992. This rule
prescribes basic entitlement to
vocational rehabilitation if they have a
10 percent service-connected disability,
they originally applied for assistance
under 38 U.S.C. chapter 31 before
November 1, 1990, and VA determines
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3163
they need rehabilitation because of an
employment handicap.
Effective Dates of Induction Into a
Rehabilitation Program, Including
Retroactive Induction
In § 21.282, we address the decision
of the United States Court of Appeals for
Veterans Claims (then the United States
Court of Veterans Appeals) in Bernier v.
Brown, 7 Vet. App. 434 (1995),
concerning effective dates for retroactive
induction into a program of
rehabilitation benefits and services. The
Bernier decision set aside two
provisions of current § 21.282 that
limited retroactive induction into
programs of rehabilitation benefits and
services under 38 U.S.C. chapter 31.
Under revised § 21.282, VA will be able
to retroactively approve a period of
training that occurred within an
individual’s period of eligibility under
38 CFR 21.41 through 21.46, beginning
on the effective date of entitlement to
disability compensation, provided that
the individual met the criteria for
entitlement to chapter 31 benefits and
services for that period. VA must
determine that the training and other
rehabilitative services that the
individual received during the period of
retroactive induction were reasonably
needed to achieve the planned goals and
objectives identified for that individual.
If the individual received other VAadministered education benefits during
any portion of that period, VA must
offset the previous education benefits
received against the payment of chapter
31 vocational rehabilitation benefits for
the same period.
We are revising § 21.282(b) and (c) to
clarify when an individual on active
duty can qualify for retroactive
induction and when the conditions for
retroactive induction may apply to both
veterans and servicemembers. For
servicemembers, the period of
retroactive induction must be within a
period under § 21.40(c) during which a
servicemember was awaiting discharge
for disability. In § 21.282(b), we are
clarifying that if an individual is
retroactively inducted into a
rehabilitation program, VA may
authorize payment of tuition, fees, and
other verifiable expenses that an
individual paid or incurred consistent
with the approved rehabilitation
program. Section 21.282(b) will also
authorize VA payment of subsistence
allowance for the period of retroactive
induction, except for any period during
which the individual was on active
duty. We are amending § 21.282(c) to
comply with pertinent statutory
authorities by stating the conditions that
must be met before an individual may
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]]>Agencies
[Federal Register Volume 75, Number 12 (Wednesday, January 20, 2010)]
[Rules and Regulations]
[Pages 3160-3163]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-891]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Part 555
[Docket No. ATF 15F; AG Order No. 3133-2010]
RIN 1140-AA30
Commerce in Explosives--Storage of Shock Tube With Detonators
(2005R-3P)
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF),
Department of Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Justice is amending the regulations of the
Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) by allowing
shock tube to be stored with detonators because these materials when
stored together do not pose a mass detonation hazard. Shock tube is a
small diameter plastic laminate tube coated with a very thin layer of
explosive material. When initiated, it transmits a low energy wave from
one point to another. The outer surface of the tube remains intact
during and after functioning.
DATES: This rule is effective March 22, 2010.
FOR FURTHER INFORMATION CONTACT: James P. Ficaretta, Enforcement
Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and
Explosives, U.S. Department of Justice, 99 New York Avenue, NE.,
Washington, DC 20226; telephone: (202) 648-7094.
SUPPLEMENTARY INFORMATION:
I. Background
ATF is responsible for implementing Title XI, Regulation of
Explosives (18 United States Code (U.S.C.) chapter 40), of the
Organized Crime Control Act of 1970. One of the stated purposes of the
Act is to reduce the hazards to persons and property arising from
misuse and unsafe or insecure storage of explosive materials. Under
section 847 of title 18, U.S.C., the Attorney General ``may prescribe
such rules and regulations as
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he deems reasonably necessary to carry out the provisions of this
chapter.'' Regulations that implement the provisions of chapter 40 are
contained in title 27, Code of Federal Regulations (CFR), part 555
(``Commerce in Explosives'').
II. Notice of Proposed Rulemaking
On January 29, 2003, ATF published in the Federal Register a notice
of proposed rulemaking (NPRM) soliciting comments from the public and
industry on a number of proposals to amend the regulations in part 555
(Notice No. 968, 68 FR 4406).\1\ ATF issued the NPRM, in part, pursuant
to the Regulatory Flexibility Act (RFA), which requires an agency to
review, within ten years of publication, rules for which an agency
prepared a final regulatory flexibility analysis addressing the impact
of the rule on small businesses or other small entities. Notice No. 968
proposed amendments to the regulations that were initiated by ATF and
amendments proposed by members of the explosives industry. In
particular, ATF proposed to amend the regulations regarding the storage
of shock tube. In general, Sec. 555.213(b) provides that detonators
are not to be stored in the same magazine with other explosive
materials. However, in a type 4 magazine, detonators that will not mass
detonate may be stored with electric squibs, safety fuse, igniters, and
igniter cord. ATF proposed to amend Sec. 555.213(b) to allow shock
tube to be stored in a type 4 storage magazine with detonators that
will not mass detonate because these materials when stored together do
not pose a mass detonation hazard.
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\1\ The regulations previously codified in 27 CFR part 55 were
designated as part 555 in 2003 in connection with the transfer of
ATF to the Department of Justice.
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The comment period for Notice No. 968, initially scheduled to close
on April 29, 2003, was extended until July 7, 2003, pursuant to ATF
Notice No. 2 (68 FR 37109, June 23, 2003). ATF received approximately
1,640 comments in response to Notice No. 968. This final rule addresses
only one of the subjects included in Notice No. 968, the proposal
regarding the storage of shock tube. The remaining proposals made in
Notice No. 968 may be addressed separately.
III. Analysis of Comments and Decision
Sixty-one (61) comments addressed ATF's proposal to allow shock
tube to be stored in a type 4 storage magazine with detonators that
will not mass detonate. One commenter objected to all the proposed
amendments in Notice No. 968 and expressed specific concerns with
respect to certain proposals. However, the commenter did not
specifically address ATF's proposal relating to the storage of shock
tube.
Fifty-six (56) commenters offered general support for ATF's
proposal, while four commenters expressed specific support for the
proposed amendment.
As stated in its comment, the Institute of Makers of Explosives
(IME) represents United States manufacturers of explosives, as well as
other companies that distribute explosives or provide related services.
According to IME, over 2.5 million metric tons of explosives are used
annually in the United States, of which IME member companies produce
over 95 percent, which have an estimated value in excess of $1 billion
annually. IME supported the proposed amendment, stating that it has
made several requests to allow shock tube to be stored with detonators,
and highlighting the fact that shock tube manufactured with a detonator
attached is currently permitted to be stored with detonators.
The Colorado Division of Oil and Public Safety, which is the State
of Colorado's regulatory enforcement authority for the manufacturing,
sale, transportation, storage, and use of commercial explosives in non-
mining related operations, supported the proposed amendment and stated
it was ``long overdue.''
The Alliance of Special Effects & Pyrotechnic Operators, Inc., an
organization of special effects professionals who work in motion
pictures, television, and on stage, also expressed support for the
proposed amendment, characterizing it as ``reasonable in view of the
nature of shock tubing.''
A federally licensed explosives dealer specifically supported the
proposed amendment and asserted that it does not pose a safety risk.
Accordingly, this final rule adopts without change the proposed
amendment with respect to shock tube.
How This Document Complies With the Federal Administrative Requirements
for Rulemaking
A. Executive Order 12866
This rule has been drafted and reviewed in accordance with
Executive Order 12866, Regulatory Planning and Review section 1(b). The
Department of Justice has determined that this rule is not a
``significant regulatory action'' under section 3(f) of Executive Order
12866 and accordingly this rule has not been reviewed by the Office of
Management and Budget. This rule will not have an annual effect on the
economy of $100 million, nor will it adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health, public safety, or State, local, or
tribal governments or communities. Accordingly, this rule is not an
``economically significant'' rulemaking as defined by Executive Order
12866.
Further, the Department has assessed both the costs and benefits of
this rule as required by Executive Order 12866, section 1(b)(6), and
has made a reasoned determination that there will be no financial costs
incurred by explosives industry members associated with this final
rule. Comments received in response to the notice of proposed
rulemaking did not indicate any concern regarding the financial impact
of the implementation of this aspect of the proposed rule. The
Department believes any financial impact will benefit the explosives
industry by reducing the number of explosives magazines used
exclusively to store shock tube. The final rule will provide explosives
industry members with the option to consolidate detonators and shock
tube into fewer explosive storage magazines, therefore alleviating the
additional cost of maintaining separate magazines for each explosive
product. ATF estimates the average cost for a new type 4 magazine (4
feet x 4 feet x 4 feet) at $3,000. Not only will the final rule reduce
the overall cost incurred by industry members because of the
requirement to maintain fewer magazines, but explosives industry
members will increase savings by decreasing the number of employee-
hours spent maintaining magazines that are used solely for the storage
of shock tube.
According to the most recent information from the U.S. Bureau of
Labor Statistics, explosives workers, ordnance handling experts, and
blasters make an average hourly wage of $20.68. ATF estimates that an
average of \1/2\ hour per week is spent maintaining each separate
magazine. Magazine maintenance includes but is not limited to security,
housekeeping, and repairs. ATF estimates that explosives industry
members eliminating one magazine will incur an annual yearly savings of
approximately $500.
Many non-electric detonators are currently manufactured with shock
tube attached as an integral part of the initiation system. ATF has
determined that non-mass detonating detonators that are affixed with
shock tube as an integral part of the initiation system can be stored
in a type 4 magazine, as long
[[Page 3162]]
as the explosives remain in a non-mass detonating packaged
configuration. This final rule will provide consistency to the
enforcement of federal law by allowing individuals or companies to
store shock tube with non-mass detonating detonators regardless of
whether they were integrated during the manufacturing process.
Additionally, ATF has consistently approved variance requests from
explosives industry members for the storage of shock tube with non-mass
detonating detonators in a type 4 magazine because it does not pose a
mass detonation hazard.
Until ATF implements this final rule relating to shock tube,
explosives industry members will continue to incur unnecessary costs by
not being able to utilize all available storage space in each
explosives storage magazine and having to maintain additional
magazines. Further, this final rule will alleviate these unnecessary
burdens on individuals or businesses wishing to establish new
explosives companies. ATF believes this final rule will provide current
and future explosives industry members with greater flexibility in
their explosives storage operations without mandating costly changes in
their current or proposed operating procedures.
B. Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the Federal Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, the Attorney General has determined that this
regulation does not have sufficient federalism implications to warrant
the preparation of a federalism summary impact statement.
C. Executive Order 12988
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988, Civil Justice Reform.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 605(b)) requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. The Attorney General has reviewed this regulation and,
by approving it, certifies that this rule will not have a significant
economic impact on a substantial number of small entities.
Individuals or companies storing shock tube will not be affected
adversely by this final rule because it allows these entities to
voluntarily make modifications to their current explosive operations.
There will be no mandated changes as a result of this final rule.
Therefore, any costs associated with the implementation of the final
rule will be incurred at the discretion of each individual explosives
industry member.
Since 2004, there have been 24 instances in which explosives
industry members were storing shock tube in the same magazine with
detonators, which is currently a violation of the federal explosives
regulations. Those 24 instances involved a total of approximately
470,650 feet of shock tube. Twenty of the 24 instances involved
companies that ATF would classify as small- or medium-sized businesses.
In each instance, the explosives industry member was required to
utilize employee-hours to move the shock tube into another magazine. Of
these 20 small- or medium-sized companies, 4 were required to attend a
warning conference with ATF officials and 6 received an ATF recall
inspection, in part because of the violation received for the improper
storage of shock tube with detonators. Each industry member was
required to dedicate company resources, including employee work hours,
to attend the required meetings or be present during another ATF
inspection.
As mentioned earlier in the preamble, the most recent information
from the U.S. Bureau of Labor Statistics, explosives workers, ordnance
handling experts, and blasters make an average hourly wage of $20.68.
The final rule will eliminate the need for small- or medium-sized
entities to utilize employee hours during warning conferences and
recall inspections that are initiated as a result of these industry
members storing shock tube and detonators in the same magazine.
Until ATF implements this final rule with respect to shock tube,
explosives industry members, including small-sized explosives
companies, will continue to incur costs associated with the unnecessary
movement and separate storage requirements of shock tube due to current
explosive regulations. Further, implementation of this final rule will
alleviate these unnecessary burdens on individuals or businesses
wishing to establish new explosives companies, some of which will be
small entities. ATF believes this final rule will provide current and
future explosives industry members with greater flexibility in their
explosives storage operations without mandating costly changes in their
current or proposed operating procedures.
E. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
804. This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
F. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
G. Paperwork Reduction Act
This final rule does not impose any new reporting or recordkeeping
requirements under the Paperwork Reduction Act.
Disclosure
Copies of the notice of proposed rulemaking, all comments received
in response to the NPRM, and this final rule will be available for
public inspection by appointment during normal business hours at: ATF
Reading Room, Room 1E-063, 99 New York Avenue, NE., Washington, DC
20226; telephone: (202) 648-7080.
Drafting Information
The author of this document is James P. Ficaretta; Enforcement
Programs and Services; Bureau of Alcohol, Tobacco, Firearms, and
Explosives.
List of Subjects in 27 CFR Part 555
Administrative practice and procedure, Authority delegations,
Customs duties and inspection, Explosives, Hazardous materials,
Imports, Penalties, Reporting and recordkeeping requirements, Safety,
Security measures, Seizures and
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forfeitures, Transportation, and Warehouses.
Authority and Issuance
0
Accordingly, for the reasons discussed in the preamble, 27 CFR Part 555
is amended as follows:
PART 555--COMMERCE IN EXPLOSIVES
0
1. The authority citation for 27 CFR Part 555 continues to read as
follows:
Authority: 18 U.S.C. 847.
Sec. 555.213 [Amended]
0
2. Section 555.213 is amended by adding ``shock tube,'' after ``safety
fuse,'' in paragraph (b)(1).
Dated: January 13, 2010.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2010-891 Filed 1-19-10; 8:45 am]
BILLING CODE 4410-FY-P
