Separation Distances of Ammonium Nitrate and Blasting Agents From Explosives or Blasting Agents, 12095-12098 [2019-06266]
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Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations
Dated: March 25, 2019.
William P. Barr,
Attorney General.
[FR Doc. 2019–06264 Filed 3–29–19; 8:45 am]
BILLING CODE 4410–FY–P
DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms,
and Explosives
27 CFR Part 555
[Docket No. ATF 2002R–226F; AG Order No.
4418–2019]
RIN 1140–AA27
Separation Distances of Ammonium
Nitrate and Blasting Agents From
Explosives or Blasting Agents
Bureau of Alcohol, Tobacco,
Firearms, and Explosives, Department of
Justice.
ACTION: Final rule.
AGENCY:
The Department of Justice is
amending the regulations of the Bureau
of Alcohol, Tobacco, Firearms, and
Explosives (ATF) to remove the
reference to an outdated guidance
document in an explanatory note
following the table of separation
distances of ammonium nitrate and
blasting agents from explosives or
blasting agents. This final rule also
clarifies that those separation distance
requirements apply to all ammonium
nitrate.
DATES: Effective Date: May 31, 2019.
FOR FURTHER INFORMATION CONTACT:
Denise Brown, Enforcement Programs
and Services, Office of Regulatory
Affairs, Bureau of Alcohol, Tobacco,
Firearms, and Explosives, U.S.
Department of Justice, 99 New York
Avenue NE, Washington, DC 20226;
telephone: (202) 648–7070.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
The Attorney General has delegated to
the Director of ATF responsibility for
administering and enforcing title XI,
Regulation of Explosives, of the
Organized Crime Control Act of 1970
(OCCA), Public Law 91–452, as
amended, 18 U.S.C. chapter 40. See 18
U.S.C. 847; 28 CFR 0.130. Congress has
declared that the purpose of the OCCA,
is to reduce the ‘‘hazard to persons and
property arising from misuse and unsafe
or insecure storage of explosive
materials.’’ Public Law 91–452, title XI,
sec. 1101. Regulations in 27 CFR part
555 implement title XI.
The regulations at 27 CFR 555.220 set
forth a table of separation distances of
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ammonium nitrate and blasting agents
from explosives or blasting agents (the
§ 555.220 Table of Distances) followed
by six explanatory notes. In this table,
the term ‘‘separation distance’’ means
the minimum distance that must be
maintained between stores of certain
materials, such as high explosives, and
blasting agents. The third note states
that the distances specified in the
§ 555.220 Table of Distances ‘‘apply to
ammonium nitrate that passes the
insensitivity test prescribed in the
definition of ammonium nitrate
fertilizer issued by the Fertilizer
Institute’’ in its ‘‘Definition and Test
Procedures for Ammonium Nitrate
Fertilizer.’’
The Fertilizer Institute (TFI) is a
voluntary, non-profit trade association
that currently has more than 160
members. See Membership List, The
Fertilizer Institute, https://www.tfi.org/
about-tfi/members (last visited February
13, 2019). Members include importers,
wholesalers, retailers, and others
involved in the fertilizer industry. Id.
The Agricultural Nitrogen Institute, a
predecessor organization of TFI, first
developed the ‘‘Definition and Test
Procedures for Ammonium Nitrate
Fertilizer’’ guidance document. See The
Fertilizer Institute, Definition and Test
Procedures for Ammonium Nitrate
Fertilizer (Aug. 1984), available at
https://www.atf.gov/resource-center/
docs/guide/definition-and-testprocedures-ammonium-nitratefertilizer/download (last visited
February 13, 2019). In May 1984, TFI
assembled a task force of industry and
government representatives who were
‘‘experts on the physical and chemical
characteristics of ammonium nitrate
fertilizer’’ to review and update the
document. Id. at i. ‘‘Based on that
review and the technical expertise and
experience of the task force members,
TFI published’’ a revised guidance
document in August 1984 (the August
1984 guidance). Id. The August 1984
guidance defines ammonium nitrate
fertilizer as ‘‘solid ammonium nitrate
containing a minimum of 33.0%
nitrogen, having a minimum pH of 4.0
in a 10% aqueous solution, 0.20%
maximum carbon, 0.010% maximum
elemental sulfur, 0.150% maximum
chloride as Cl, or particulated elemental
metals sufficient to release 4.60 ml,
maximum, of hydrogen from 50.0 gram
sample and which will pass the
detonation resistance test in Section 2.0
and the burning test in Section 4.0.’’ Id.
at 1.
A. The Fertilizer Institute Petition
On March 19, 2002, TFI filed a
petition with ATF requesting that ATF
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amend the explosives regulations at
§ 555.220 to remove the reference to the
August 1984 guidance. TFI explained
that the document is outdated because
TFI last published it in 1984, will not
review or update it, and cannot ensure
that its procedures are still valid. TFI
recognized that ATF may require an
alternate method of determining the
insensitivity of ammonium nitrate
fertilizer and suggested that ATF
reference certain Department of
Transportation (DOT) regulations.
The DOT regulations include several
definitions and two hazardous
classifications (Class 5.1 and Class 9) for
ammonium nitrate based fertilizers
based, in part, on the amount of
combustible material included in the
fertilizer. See 49 CFR 172.101. Class 5.1
ammonium nitrate based fertilizer is
defined as a uniform mixture of
fertilizer with ammonium nitrate as the
main ingredient within the following
composition limits: (1) Not less than 90
percent ammonium nitrate with not
more than 0.2 percent total combustible,
organic material calculated as carbon,
and with added matter, if any, that is
inorganic and inert when in contact
with ammonium nitrate; or (2) less than
90 percent but more than 70 percent
ammonium nitrate with other inorganic
materials, or more than 80 percent but
less than 90 percent ammonium nitrate
mixed with calcium carbonate or
dolomite or mineral calcium sulphate,
and not more than 0.4 percent total
combustible, organic material calculated
as carbon; or (3) ammonium nitrate
based fertilizers containing mixtures of
ammonium nitrate and ammonium
sulphate with more than 45 percent but
less than 70 percent ammonium nitrate,
and not more than 0.4 percent total
combustible, organic material calculated
as carbon such that the sum of the
percentage of compositions of
ammonium nitrate and ammonium
sulphate exceeds 70 percent. See 49
CFR 172.102(c)(1), code/special
provision 150.
The 5.1 ammonium nitrate fertilizer
classification can only be used for
substances that are too insensitive for
acceptance into Class 1 (explosive)
when tested in accordance with Test
Series 2 in the United Nations (UN)
Manual of Tests and Criteria, Part 1. See
49 CFR 172.101, 172.102(c)(1) code/
special provisions 52 and 150. To
determine whether a material falls
within Class 5, Division 5.1, DOT
requires regulated parties to conduct
tests in accordance with international
standards in the UN Manual of Tests
and Criteria. See 49 CFR 173.127(a).
Class 9 ammonium nitrate based
fertilizer is defined as a uniform,
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Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations
ammonium nitrate based fertilizer
mixture containing nitrogen, phosphate,
or potash with not more than 70 percent
ammonium nitrate and not more than
0.4 percent total combustible, organic
material calculated as carbon or with
not more than 45 percent ammonium
nitrate and unrestricted combustible
material. See 49 CFR 172.101,
172.102(c)(1) code/special provision
132.
B. Advance Notice of Proposed
Rulemaking
On September 16, 2010, based upon
TFI’s petition, ATF published in the
Federal Register an advance notice of
proposed rulemaking (ANPRM). 75 FR
56489. ATF requested information from
explosives industry members, trade
associations, consumers, and all other
interested parties to determine whether
a replacement reference for the August
1984 guidance is necessary, and, if so,
whether there are any alternate methods
available to determine the insensitivity
of ammonium nitrate fertilizer. ATF
solicited comments on 10 specific
questions as well as any relevant
information on the subject. The
comment period for the ANPRM closed
on December 15, 2010.
In response to the ANPRM, ATF
received three comments. One
commenter is the petitioner, one
commenter is the Institute of Makers of
Explosives (IME), an explosives trade
association, and the third commenter is
an associate member of the same
explosives trade association. All three
commenters were in support of
removing the reference to the August
1984 guidance and adopting DOT
regulations for classifying ammonium
nitrate fertilizer in accordance with the
UN Manual of Tests and Criteria.
II. Notice of Proposed Rulemaking
On May 29, 2015, ATF published a
notice of proposed rulemaking (NPRM)
in the Federal Register (80 FR 30633)
that requested comments on its
proposed rule to amend the regulations
governing the separation distances of
ammonium nitrate and blasting agents
from explosives or blasting agents. ATF
proposed in the NPRM to remove
reference to the August 1984 guidance
following the § 555.220 Table of
Distances and clarify that all ammonium
nitrate is subject to 27 CFR 555.206(c)(2)
and the § 555.220 Table of Distances.
The comment period for the NPRM
closed on August 27, 2015.
The proposed rule did not include the
change suggested by one of the
commenters on the ANPRM, to replace
the current reference to the August 1984
guidance document with a reference to
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the UN Test Series 1 and 2 Gap Tests
because the recommended test methods
do not address all of the hazards
encountered during all processes
involving dangerous goods. Under
common circumstances, such as during
handling and storage, certain
characteristics of ammonium nitrate can
change and make the material more
sensitive and susceptible to accidental
detonation. Because these changes may
occur long after the evaluation of
suitability for classification under the
UN testing regime occurs (following
manufacture and prior to first
transportation), the application of such
a test, and the assignation of a UN
classification for transportation may not
accurately reflect the susceptibility of
the material to accidental detonation
throughout its lifespan. Additionally,
ATF is unaware of any commerciallyproduced ammonium nitrate
manufactured for use with, and stored
in proximity of, explosives that would
not fall under the § 555.220 Table of
Distances, using the UN Test Series 1
and 2 Gap Tests under the commenter’s
suggested amendments. Thus, the
Department preferred amending the
third note following the § 555.220 Table
of Distances to delete the reference to
the August 1984 guidance and stating
that all ammonium nitrate stored near
high explosives and blasting agents is
subject to the § 555.220 Table of
Distances. These changes would be cost
effective for the affected industry and
maintain public safety.
III. Analysis of Comments on the NPRM
and Department Response
A. Comments Received
ATF received one comment in
response to the NPRM. The commenter,
IME, also responded with a comment to
the 2010 ANPRM. Once again, IME
generally supports ATF’s proposed
changes with one suggested
amendment. While IME appreciates
ATF’s efforts to ‘‘minimize costs to
industry associated with regulatory
compliance, and its actions to update
and streamline its rules,’’ IME suggests
that by ‘‘expanding its rules to regulate
’all A[mmonium] N[itrate],’ ATF’s Table
of Distances will continue to differ
materially from its source document, the
IME’s American Table of Distances
(ATD), and the current National Fire
Protection Association publication 495,
both of which reference UN test
procedures for A[mmonium] N[itrate].’’
IME recommends that, in order to avoid
any confusion that the removal of the
TFI definition might engender, the word
‘‘solid’’ should be added to note (3) to
the table in § 555.220 so it reads as
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follows: (3) These distances apply to all
solid ammonium nitrate with respect to
their separation from stores of high
explosives and blasting agents . . . .
B. Department Response
TFI’s 1984 Definition and Test
Procedures for Ammonium Nitrate
Fertilizer addressed solid ammonium
nitrate containing, in part, a minimum
of 33 percent nitrogen that passed a
detonation and burning test. Since that
time, the explosives industry has
developed a variety of new ammonium
nitrate based products for blasting
operations, and continues to develop
more efficient and effective explosive
products. Therefore, the Department
does not believe it is in the best interests
of public safety to specify that only
solid ammonium nitrate should be
subject to 27 CFR 555.206(c)(2) and the
§ 555.220 Table of Distances. Retaining
flexibility to include ammonium nitrate
in other forms will ensure that the
public is protected from stores of all
ammonium nitrate stored in proximity
to high explosives and blasting agent
storage. Accordingly, the Department is
not adopting IME’s suggestion to clarify
that only solid ammonium nitrate is
subject to 27 CFR 555.206(c)(2) and the
§ 555.220 Table of Distances.
The Department believes that this
final rule will not adversely affect the
explosives industry because explosives
industry members storing ammonium
nitrate near stores of high explosives
and blasting agents do not use the
outdated August 1984 guidance
referenced in the existing regulations
and already comply with the § 555.220
Table of Distances for all ammonium
nitrate. The final rule will remove an
outdated reference from the regulations
and replace it with clear guidance that
the Department believes will have
virtually no impact on the explosives
industry. All ammonium nitrate will be
subject to the § 555.220 Table of
Distances when stored within the
sympathetic detonation distances of
high explosives and blasting agents
listed under the table at § 555.220.
Ammonium nitrate explosive mixtures
that are high explosives pursuant to
§ 555.202(a), or are defined as a blasting
agent pursuant to § 555.11, will be
subject both to the table of distances for
storage of explosives materials at
§ 555.218 and to the § 555.220 Table of
Distances. The final rule will continue
to protect public safety by ensuring that
all stores of ammonium nitrate, located
within sympathetic detonation
distances to high explosives and
blasting agents, meet the minimum
distances to inhabited buildings,
highways, and passenger railways.
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IV. Final Rule
This final rule implements, without
change, the amendments to the
regulations in 27 CFR 555.220 that were
specified in the NPRM.
V. Statutory and Executive Order
Reviews
A. Executive Orders 12866, 13563 and
13771
Executive Orders 13563, ‘‘Improving
Regulation and Regulatory Review,’’ and
12866, ‘‘Regulatory Planning and
Review,’’ direct agencies to assess the
costs and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits,
reducing costs, harmonizing rules, and
promoting flexibility. Executive Order
13771, ‘‘Reducing Regulation and
Controlling Regulatory Costs,’’ directs
agencies to reduce regulation and
control regulatory costs.
The Attorney General has determined
that this final rule is not a ‘‘significant
regulatory action,’’ under section 3(f) of
Executive Order 12866. Accordingly,
the rule has not been reviewed by the
Office of Management and Budget
(OMB). As this rule is not a significant
regulatory action, this rule is not a
regulatory action subject to the
requirements of Executive Order 13771.
See OMB Memorandum, ‘‘Guidance
Implementing Executive Order 13771,
titled ‘Reducing Regulation and
Controlling Regulatory Costs’’’ (April 5,
2017).
As discussed below, this rule would
not have any costs to industry because
this rule puts into regulation current
industry practices; therefore, the
explosives industry would not need to
incur any hourly or capital burdens in
order to comply with these changes.
Section 6 of Executive Order 13563
directs agencies to develop a plan to
review existing significant rules that
may be ‘‘outmoded, ineffective,
insufficient, or excessively
burdensome,’’ and to make appropriate
changes where warranted. The
Department selected and reviewed this
rule under the criteria set forth in its
Plan for Retrospective Analysis of
Existing Rules, and determined that this
final rule removes a reference to an
outdated guidance document, clarifies
the existing regulations, and continues
to protect public safety.
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B. Executive Order 13132
This final rule will not have
substantial direct effects on the States,
on the relationship between the Federal
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, ‘‘Federalism,’’ the
Attorney General has determined that
this final rule will not have sufficient
federalism implications to warrant the
preparation of a federalism summary
impact statement.
C. Executive Order 12988
This final rule meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988, ‘‘Civil
Justice Reform.’’
D. Regulatory Flexibility Act
Under the Regulatory Flexibility Act,
5 U.S.C. 601–612, the Attorney General
certifies that this final rule will not have
a significant economic impact on a
substantial number of small entities.
This final rule updates the affected
regulations by removing a reference to
an outdated guidance document. The
changes in this final rule are
administrative and do not add any new
requirements that would have any
impact on the economy because the
referenced test in explanatory note three
was last published in 1984, is obsolete,
and is not used by the explosives
industry; and the explosives industry
already ensures their stores of
ammonium nitrate are stored in
accordance with the § 555.220 Table of
Distances. Accordingly, this rule does
not require any business, regardless of
size, to incur any additional costs.
E. Congressional Review Act
This final rule is not a major rule as
defined by the Congressional Review
Act, 5 U.S.C. 804. This final 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
enterprises to compete with foreignbased enterprises in domestic and
export markets.
F. Unfunded Mandates Reform Act of
1995
This final 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
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12097
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 petition, this notice, and
the comments received 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) 648–8740.
Drafting Information
The author of this document is Denise
Brown, Enforcement Programs and
Services, Office of Regulatory Affairs,
Bureau of Alcohol, Tobacco, Firearms,
and Explosives.
List of Subjects in 27 CFR Part 555
Administrative practice and
procedure, Customs duties and
inspection, Explosives, Hazardous
substances, Imports, Penalties,
Reporting and recordkeeping
requirements, Safety, Security measures,
Seizures and forfeitures, Transportation,
Warehouses.
Authority and Issuance
Accordingly, for the reasons
discussed in the preamble, 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.
2. In § 555.220, revise note (3) to the
table to read as follows:
■
§ 555.220 Table of separation distances of
ammonium nitrate and blasting agents from
explosives or blasting agents.
*
*
*
*
*
(3) These distances apply to all
ammonium nitrate with respect to its
separation from stores of high
explosives and blasting agents.
Ammonium nitrate explosive mixtures
that are high explosives pursuant to
§ 555.202(a) or are defined as a blasting
agent pursuant to § 555.11 are subject to
the table of distances for storage of
explosive materials in § 555.218 and to
the table of separation distances of
ammonium nitrate and blasting agents
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from explosives or blasting agents in
this section.
*
*
*
*
*
March 25, 2019.
William P. Barr,
Attorney General.
[FR Doc. 2019–06266 Filed 3–29–19; 8:45 am]
BILLING CODE 4410–FY–P
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 269
[Docket ID: DOD–2016–OS–0045]
RIN 0790–AK40
Civil Monetary Penalty Inflation
Adjustment
Under Secretary of Defense
(Comptroller), Department of Defense.
ACTION: Final rule.
AGENCY:
The Department of Defense is
issuing this final rule to adjust each of
its statutory civil monetary penalties
(CMP) to account for inflation. The
Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended by
the Debt Collection Improvement Act of
1996 and the Federal Civil Penalties
Inflation Adjustment Act Improvements
Act of 2015 (the 2015 Act), requires the
head of each agency to adjust for
inflation its CMP levels in effect as of
November 2, 2015, under a revised
methodology that was effective for 2016
and for each year thereafter.
DATES: This rule is effective April 1,
2019.
FOR FURTHER INFORMATION CONTACT:
Brian Banal, 703–571–1652.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Background Information
The Federal Civil Penalties Inflation
Adjustment Act of 1990, Public Law
101–410, 104 Stat. 890 (28 U.S.C. 2461,
note), as amended by the Debt
Collection Improvement Act of 1996,
Public Law 104–134, April 26, 1996,
and further amended by the Federal
Civil Penalties Inflation Adjustment Act
Improvements Act of 2015 (the 2015
Act), Public Law 114–74, November 2,
2015, required agencies to annually
adjust the level of CMPs for inflation to
improve their effectiveness and
maintain their deterrent effect. The 2015
Act required that not later than July 1,
2016, and not later than January 15 of
every year thereafter, the head of each
agency must adjust each CMP within its
jurisdiction by the inflation adjustment
described in the 2015 Act. The inflation
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adjustment is determined by increasing
the maximum CMP or the range of
minimum and maximum CMPs, as
applicable, for each CMP by the cost-ofliving adjustment, rounded to the
nearest multiple of $1. The cost-ofliving adjustment is the percentage (if
any) for each CMP by which the
Consumer Price Index (CPI) for the
month of October preceding the date of
the adjustment, exceeds the CPI for the
month of October in the previous
calendar year.
The initial catch up adjustments for
inflation to the Department of Defense’s
CMPs were published as an interim
final rule in the Federal Register on
May 26, 2016 (81 FR 33389–33391) and
became effective on that date. The
interim final rule was published as a
final rule without change on September
12, 2016 (81 FR 62629–62631), effective
that date. The revised methodology for
agencies for 2019 and each year
thereafter provides for the improvement
of the effectiveness of CMPs and to
maintain their deterrent effect. The
Department of Defense is adjusting the
level of all civil monetary penalties
under its jurisdiction by the Office of
Management and Budget (OMB)
directed cost-of-living adjustment
multiplier for 2019 of 1.02522
prescribed in OMB Memorandum M–
19–04, ‘‘Implementation of Penalty
Inflation Adjustments for 2019,
Pursuant to the Federal Civil Penalties
Inflation Adjustment Act Improvements
Act of 2015,’’ dated December 14, 2018.
The Department of Defense’s 2019
adjustments for inflation to CMPs apply
only to those CMPs, including those
whose associated violation predated
such adjustment, which are assessed by
the Department of Defense after the
effective date of the new CMP level.
Statement of Authority and Costs and
Benefits
Pursuant to 5 U.S.C. 553(b)B, there is
good cause to issue this rule without
prior public notice or opportunity for
public comment because it would be
impracticable and unnecessary. The
Federal Civil Penalties Inflation
Adjustment Act Improvements Act of
2015 (Section 701(b)) requires agencies,
effective 2017, to make annual
adjustments for inflation to CMPs
notwithstanding section 553 of title 5,
United States Code. Additionally, the
methodology used, effective 2017, for
adjusting CMPs for inflation is
established in statute, with no
discretion provided to agencies
regarding the substance of the
adjustments for inflation to CMPs. The
Department of Defense is charged only
with performing ministerial
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computations to determine the dollar
amount of adjustments for inflation to
CMPs.
Further, there are no significant costs
associated with the regulatory revisions
that would impose any mandates on the
Department of Defense, Federal, State or
local governments, or the private sector.
Accordingly, prior public notice and an
opportunity for public comment are not
required for this rule. The benefit of this
rule is the Department of Defense
anticipates that civil monetary penalty
collections may increase in the future
due to new penalty authorities and
other changes in this rule. However, it
is difficult to accurately predict the
extent of any increase, if any, due to a
variety of factors, such as budget and
staff resources, the number and quality
of civil penalty referrals or leads, and
the length of time needed to investigate
and resolve a case.
Regulatory Procedures
Executive Order 12866, ‘‘Regulatory
Planning and Review’’ and Executive
Order 13563, ‘‘Improving Regulation
and Regulatory Review’’
Executive Orders 13563 and 12866
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distribute impacts, and equity).
Executive Order 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This rule is not a ‘‘significant
regulatory action,’’ and was not
reviewed by the Office of Management
and Budget.
Executive Order 13771, ‘‘Reducing
Regulation and Controlling Regulatory
Costs’’
This final rule is not an E.O. 13771
regulatory action because this rule is not
significant under E.O. 12866.
Unfunded Mandates Reform Act (2
U.S.C. Chapter 25)
Section 202 of the Unfunded
Mandates Reform Act of 1995 (UMRA)
(2 U.S.C. 1532) requires agencies to
assess anticipated costs and benefits
before issuing any rule the mandates of
which require spending in any year of
$100 million in 1995 dollars, updated
annually for inflation. In 2016, that
threshold is approximately $146
million. This rule will not mandate any
requirements for State, local, or tribal
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]]>Agencies
[Federal Register Volume 84, Number 62 (Monday, April 1, 2019)]
[Rules and Regulations]
[Pages 12095-12098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06266]
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DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Part 555
[Docket No. ATF 2002R-226F; AG Order No. 4418-2019]
RIN 1140-AA27
Separation Distances of Ammonium Nitrate and Blasting Agents From
Explosives or Blasting Agents
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives,
Department of Justice.
ACTION: Final rule.
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SUMMARY: The Department of Justice is amending the regulations of the
Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to remove
the reference to an outdated guidance document in an explanatory note
following the table of separation distances of ammonium nitrate and
blasting agents from explosives or blasting agents. This final rule
also clarifies that those separation distance requirements apply to all
ammonium nitrate.
DATES: Effective Date: May 31, 2019.
FOR FURTHER INFORMATION CONTACT: Denise Brown, Enforcement Programs and
Services, Office of Regulatory Affairs, Bureau of Alcohol, Tobacco,
Firearms, and Explosives, U.S. Department of Justice, 99 New York
Avenue NE, Washington, DC 20226; telephone: (202) 648-7070.
SUPPLEMENTARY INFORMATION:
I. Background
The Attorney General has delegated to the Director of ATF
responsibility for administering and enforcing title XI, Regulation of
Explosives, of the Organized Crime Control Act of 1970 (OCCA), Public
Law 91-452, as amended, 18 U.S.C. chapter 40. See 18 U.S.C. 847; 28 CFR
0.130. Congress has declared that the purpose of the OCCA, is to reduce
the ``hazard to persons and property arising from misuse and unsafe or
insecure storage of explosive materials.'' Public Law 91-452, title XI,
sec. 1101. Regulations in 27 CFR part 555 implement title XI.
The regulations at 27 CFR 555.220 set forth a table of separation
distances of ammonium nitrate and blasting agents from explosives or
blasting agents (the Sec. 555.220 Table of Distances) followed by six
explanatory notes. In this table, the term ``separation distance''
means the minimum distance that must be maintained between stores of
certain materials, such as high explosives, and blasting agents. The
third note states that the distances specified in the Sec. 555.220
Table of Distances ``apply to ammonium nitrate that passes the
insensitivity test prescribed in the definition of ammonium nitrate
fertilizer issued by the Fertilizer Institute'' in its ``Definition and
Test Procedures for Ammonium Nitrate Fertilizer.''
The Fertilizer Institute (TFI) is a voluntary, non-profit trade
association that currently has more than 160 members. See Membership
List, The Fertilizer Institute, https://www.tfi.org/about-tfi/members
(last visited February 13, 2019). Members include importers,
wholesalers, retailers, and others involved in the fertilizer industry.
Id.
The Agricultural Nitrogen Institute, a predecessor organization of
TFI, first developed the ``Definition and Test Procedures for Ammonium
Nitrate Fertilizer'' guidance document. See The Fertilizer Institute,
Definition and Test Procedures for Ammonium Nitrate Fertilizer (Aug.
1984), available at https://www.atf.gov/resource-center/docs/guide/definition-and-test-procedures-ammonium-nitrate-fertilizer/download
(last visited February 13, 2019). In May 1984, TFI assembled a task
force of industry and government representatives who were ``experts on
the physical and chemical characteristics of ammonium nitrate
fertilizer'' to review and update the document. Id. at i. ``Based on
that review and the technical expertise and experience of the task
force members, TFI published'' a revised guidance document in August
1984 (the August 1984 guidance). Id. The August 1984 guidance defines
ammonium nitrate fertilizer as ``solid ammonium nitrate containing a
minimum of 33.0% nitrogen, having a minimum pH of 4.0 in a 10% aqueous
solution, 0.20% maximum carbon, 0.010% maximum elemental sulfur, 0.150%
maximum chloride as Cl, or particulated elemental metals sufficient to
release 4.60 ml, maximum, of hydrogen from 50.0 gram sample and which
will pass the detonation resistance test in Section 2.0 and the burning
test in Section 4.0.'' Id. at 1.
A. The Fertilizer Institute Petition
On March 19, 2002, TFI filed a petition with ATF requesting that
ATF amend the explosives regulations at Sec. 555.220 to remove the
reference to the August 1984 guidance. TFI explained that the document
is outdated because TFI last published it in 1984, will not review or
update it, and cannot ensure that its procedures are still valid. TFI
recognized that ATF may require an alternate method of determining the
insensitivity of ammonium nitrate fertilizer and suggested that ATF
reference certain Department of Transportation (DOT) regulations.
The DOT regulations include several definitions and two hazardous
classifications (Class 5.1 and Class 9) for ammonium nitrate based
fertilizers based, in part, on the amount of combustible material
included in the fertilizer. See 49 CFR 172.101. Class 5.1 ammonium
nitrate based fertilizer is defined as a uniform mixture of fertilizer
with ammonium nitrate as the main ingredient within the following
composition limits: (1) Not less than 90 percent ammonium nitrate with
not more than 0.2 percent total combustible, organic material
calculated as carbon, and with added matter, if any, that is inorganic
and inert when in contact with ammonium nitrate; or (2) less than 90
percent but more than 70 percent ammonium nitrate with other inorganic
materials, or more than 80 percent but less than 90 percent ammonium
nitrate mixed with calcium carbonate or dolomite or mineral calcium
sulphate, and not more than 0.4 percent total combustible, organic
material calculated as carbon; or (3) ammonium nitrate based
fertilizers containing mixtures of ammonium nitrate and ammonium
sulphate with more than 45 percent but less than 70 percent ammonium
nitrate, and not more than 0.4 percent total combustible, organic
material calculated as carbon such that the sum of the percentage of
compositions of ammonium nitrate and ammonium sulphate exceeds 70
percent. See 49 CFR 172.102(c)(1), code/special provision 150.
The 5.1 ammonium nitrate fertilizer classification can only be used
for substances that are too insensitive for acceptance into Class 1
(explosive) when tested in accordance with Test Series 2 in the United
Nations (UN) Manual of Tests and Criteria, Part 1. See 49 CFR 172.101,
172.102(c)(1) code/special provisions 52 and 150. To determine whether
a material falls within Class 5, Division 5.1, DOT requires regulated
parties to conduct tests in accordance with international standards in
the UN Manual of Tests and Criteria. See 49 CFR 173.127(a).
Class 9 ammonium nitrate based fertilizer is defined as a uniform,
[[Page 12096]]
ammonium nitrate based fertilizer mixture containing nitrogen,
phosphate, or potash with not more than 70 percent ammonium nitrate and
not more than 0.4 percent total combustible, organic material
calculated as carbon or with not more than 45 percent ammonium nitrate
and unrestricted combustible material. See 49 CFR 172.101,
172.102(c)(1) code/special provision 132.
B. Advance Notice of Proposed Rulemaking
On September 16, 2010, based upon TFI's petition, ATF published in
the Federal Register an advance notice of proposed rulemaking (ANPRM).
75 FR 56489. ATF requested information from explosives industry
members, trade associations, consumers, and all other interested
parties to determine whether a replacement reference for the August
1984 guidance is necessary, and, if so, whether there are any alternate
methods available to determine the insensitivity of ammonium nitrate
fertilizer. ATF solicited comments on 10 specific questions as well as
any relevant information on the subject. The comment period for the
ANPRM closed on December 15, 2010.
In response to the ANPRM, ATF received three comments. One
commenter is the petitioner, one commenter is the Institute of Makers
of Explosives (IME), an explosives trade association, and the third
commenter is an associate member of the same explosives trade
association. All three commenters were in support of removing the
reference to the August 1984 guidance and adopting DOT regulations for
classifying ammonium nitrate fertilizer in accordance with the UN
Manual of Tests and Criteria.
II. Notice of Proposed Rulemaking
On May 29, 2015, ATF published a notice of proposed rulemaking
(NPRM) in the Federal Register (80 FR 30633) that requested comments on
its proposed rule to amend the regulations governing the separation
distances of ammonium nitrate and blasting agents from explosives or
blasting agents. ATF proposed in the NPRM to remove reference to the
August 1984 guidance following the Sec. 555.220 Table of Distances and
clarify that all ammonium nitrate is subject to 27 CFR 555.206(c)(2)
and the Sec. 555.220 Table of Distances. The comment period for the
NPRM closed on August 27, 2015.
The proposed rule did not include the change suggested by one of
the commenters on the ANPRM, to replace the current reference to the
August 1984 guidance document with a reference to the UN Test Series 1
and 2 Gap Tests because the recommended test methods do not address all
of the hazards encountered during all processes involving dangerous
goods. Under common circumstances, such as during handling and storage,
certain characteristics of ammonium nitrate can change and make the
material more sensitive and susceptible to accidental detonation.
Because these changes may occur long after the evaluation of
suitability for classification under the UN testing regime occurs
(following manufacture and prior to first transportation), the
application of such a test, and the assignation of a UN classification
for transportation may not accurately reflect the susceptibility of the
material to accidental detonation throughout its lifespan.
Additionally, ATF is unaware of any commercially-produced ammonium
nitrate manufactured for use with, and stored in proximity of,
explosives that would not fall under the Sec. 555.220 Table of
Distances, using the UN Test Series 1 and 2 Gap Tests under the
commenter's suggested amendments. Thus, the Department preferred
amending the third note following the Sec. 555.220 Table of Distances
to delete the reference to the August 1984 guidance and stating that
all ammonium nitrate stored near high explosives and blasting agents is
subject to the Sec. 555.220 Table of Distances. These changes would be
cost effective for the affected industry and maintain public safety.
III. Analysis of Comments on the NPRM and Department Response
A. Comments Received
ATF received one comment in response to the NPRM. The commenter,
IME, also responded with a comment to the 2010 ANPRM. Once again, IME
generally supports ATF's proposed changes with one suggested amendment.
While IME appreciates ATF's efforts to ``minimize costs to industry
associated with regulatory compliance, and its actions to update and
streamline its rules,'' IME suggests that by ``expanding its rules to
regulate 'all A[mmonium] N[itrate],' ATF's Table of Distances will
continue to differ materially from its source document, the IME's
American Table of Distances (ATD), and the current National Fire
Protection Association publication 495, both of which reference UN test
procedures for A[mmonium] N[itrate].'' IME recommends that, in order to
avoid any confusion that the removal of the TFI definition might
engender, the word ``solid'' should be added to note (3) to the table
in Sec. 555.220 so it reads as follows: (3) These distances apply to
all solid ammonium nitrate with respect to their separation from stores
of high explosives and blasting agents . . . .
B. Department Response
TFI's 1984 Definition and Test Procedures for Ammonium Nitrate
Fertilizer addressed solid ammonium nitrate containing, in part, a
minimum of 33 percent nitrogen that passed a detonation and burning
test. Since that time, the explosives industry has developed a variety
of new ammonium nitrate based products for blasting operations, and
continues to develop more efficient and effective explosive products.
Therefore, the Department does not believe it is in the best interests
of public safety to specify that only solid ammonium nitrate should be
subject to 27 CFR 555.206(c)(2) and the Sec. 555.220 Table of
Distances. Retaining flexibility to include ammonium nitrate in other
forms will ensure that the public is protected from stores of all
ammonium nitrate stored in proximity to high explosives and blasting
agent storage. Accordingly, the Department is not adopting IME's
suggestion to clarify that only solid ammonium nitrate is subject to 27
CFR 555.206(c)(2) and the Sec. 555.220 Table of Distances.
The Department believes that this final rule will not adversely
affect the explosives industry because explosives industry members
storing ammonium nitrate near stores of high explosives and blasting
agents do not use the outdated August 1984 guidance referenced in the
existing regulations and already comply with the Sec. 555.220 Table of
Distances for all ammonium nitrate. The final rule will remove an
outdated reference from the regulations and replace it with clear
guidance that the Department believes will have virtually no impact on
the explosives industry. All ammonium nitrate will be subject to the
Sec. 555.220 Table of Distances when stored within the sympathetic
detonation distances of high explosives and blasting agents listed
under the table at Sec. 555.220. Ammonium nitrate explosive mixtures
that are high explosives pursuant to Sec. 555.202(a), or are defined
as a blasting agent pursuant to Sec. 555.11, will be subject both to
the table of distances for storage of explosives materials at Sec.
555.218 and to the Sec. 555.220 Table of Distances. The final rule
will continue to protect public safety by ensuring that all stores of
ammonium nitrate, located within sympathetic detonation distances to
high explosives and blasting agents, meet the minimum distances to
inhabited buildings, highways, and passenger railways.
[[Page 12097]]
IV. Final Rule
This final rule implements, without change, the amendments to the
regulations in 27 CFR 555.220 that were specified in the NPRM.
V. Statutory and Executive Order Reviews
A. Executive Orders 12866, 13563 and 13771
Executive Orders 13563, ``Improving Regulation and Regulatory
Review,'' and 12866, ``Regulatory Planning and Review,'' direct
agencies to assess the costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic,
environmental, public health and safety effects, distributive impacts,
and equity). Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility. Executive Order 13771, ``Reducing Regulation
and Controlling Regulatory Costs,'' directs agencies to reduce
regulation and control regulatory costs.
The Attorney General has determined that this final rule is not a
``significant regulatory action,'' under section 3(f) of Executive
Order 12866. Accordingly, the rule has not been reviewed by the Office
of Management and Budget (OMB). As this rule is not a significant
regulatory action, this rule is not a regulatory action subject to the
requirements of Executive Order 13771. See OMB Memorandum, ``Guidance
Implementing Executive Order 13771, titled `Reducing Regulation and
Controlling Regulatory Costs''' (April 5, 2017).
As discussed below, this rule would not have any costs to industry
because this rule puts into regulation current industry practices;
therefore, the explosives industry would not need to incur any hourly
or capital burdens in order to comply with these changes.
Section 6 of Executive Order 13563 directs agencies to develop a
plan to review existing significant rules that may be ``outmoded,
ineffective, insufficient, or excessively burdensome,'' and to make
appropriate changes where warranted. The Department selected and
reviewed this rule under the criteria set forth in its Plan for
Retrospective Analysis of Existing Rules, and determined that this
final rule removes a reference to an outdated guidance document,
clarifies the existing regulations, and continues to protect public
safety.
B. Executive Order 13132
This final rule will not have substantial direct effects on the
States, on the relationship between the Federal Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, ``Federalism,'' the Attorney General has
determined that this final rule will not have sufficient federalism
implications to warrant the preparation of a federalism summary impact
statement.
C. Executive Order 12988
This final rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988, ``Civil Justice
Reform.''
D. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, the
Attorney General certifies that this final rule will not have a
significant economic impact on a substantial number of small entities.
This final rule updates the affected regulations by removing a
reference to an outdated guidance document. The changes in this final
rule are administrative and do not add any new requirements that would
have any impact on the economy because the referenced test in
explanatory note three was last published in 1984, is obsolete, and is
not used by the explosives industry; and the explosives industry
already ensures their stores of ammonium nitrate are stored in
accordance with the Sec. 555.220 Table of Distances. Accordingly, this
rule does not require any business, regardless of size, to incur any
additional costs.
E. Congressional Review Act
This final rule is not a major rule as defined by the Congressional
Review Act, 5 U.S.C. 804. This final 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 enterprises to compete with foreign-based
enterprises in domestic and export markets.
F. Unfunded Mandates Reform Act of 1995
This final 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 petition, this notice, and the comments received 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) 648-8740.
Drafting Information
The author of this document is Denise Brown, Enforcement Programs
and Services, Office of Regulatory Affairs, Bureau of Alcohol, Tobacco,
Firearms, and Explosives.
List of Subjects in 27 CFR Part 555
Administrative practice and procedure, Customs duties and
inspection, Explosives, Hazardous substances, Imports, Penalties,
Reporting and recordkeeping requirements, Safety, Security measures,
Seizures and forfeitures, Transportation, Warehouses.
Authority and Issuance
Accordingly, for the reasons discussed in the preamble, 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.
0
2. In Sec. 555.220, revise note (3) to the table to read as follows:
Sec. 555.220 Table of separation distances of ammonium nitrate and
blasting agents from explosives or blasting agents.
* * * * *
(3) These distances apply to all ammonium nitrate with respect to
its separation from stores of high explosives and blasting agents.
Ammonium nitrate explosive mixtures that are high explosives pursuant
to Sec. 555.202(a) or are defined as a blasting agent pursuant to
Sec. 555.11 are subject to the table of distances for storage of
explosive materials in Sec. 555.218 and to the table of separation
distances of ammonium nitrate and blasting agents
[[Page 12098]]
from explosives or blasting agents in this section.
* * * * *
March 25, 2019.
William P. Barr,
Attorney General.
[FR Doc. 2019-06266 Filed 3-29-19; 8:45 am]
BILLING CODE 4410-FY-P
