[Federal Register Volume 66, Number 111 (Friday, June 8, 2001)]
[Notices]
[Pages 30985-30988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-14496]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

[Docket No. RSPA-00-7126 (PD-24(R))]


New Jersey Restrictions on Transportation of Blasting Caps With 
Other Commercial Explosives

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Notice of administrative determination of preemption by RSPA's 
associate administrator for hazardous materials safety.

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    Applicant: Institute of Makers of Explosives (IME).
    Local Laws Affected: New Jersey Statutes Annotated (N.J.S.A.) 
21:1A-137(F); New Jersey Administrative Code (N.J.A.C.) 12:190-6.5(d).
    Applicable Federal Requirements: Federal hazardous material 
transportation law, 49 U.S.C. 5101 et seq., and the Hazardous Materials 
Regulations (HMR), 49 CFR Parts 171-180.
    Mode Affected: Highway.

SUMMARY: Federal hazardous material transportation law preempts 
N.J.S.A. 21:1A-137F and N.J.A.C. 12:190-6.5(d) when those provisions 
are interpreted and applied to prohibit the transportation of blasting 
caps (including electric blasting caps) on the same motor vehicle with 
more than 5,000 pounds of explosives, while on a public road or during 
activities on private property that are incidental to the movement of 
property and involve a safety aspect of transportation on a public 
road.

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief 
Counsel, Research and Special Programs Administration, U.S. Department 
of Transportation, Washington, DC 20590-0001 (Tel. No. 202-366-4400).

SUPPLEMENTARY INFORMATION:

I. Background

    In this determination, RSPA considers whether Federal hazardous 
material transportation law, 49 U.S.C. 5101 et seq., preempts New 
Jersey statutory and regulatory restrictions against the transportation 
of blasting caps on the same motor vehicle with more than 5,000 pounds 
of other commercial explosives.
    In a notice published in the Federal Register on April 7, 2000, 65 
FR 18422, RSPA invited interested persons to comment on an application 
by IME for a determination that New Jersey's statutory and regulatory 
restrictions are preempted on two grounds. IME stated that these 
restrictions (1) concern the ``handling'' of a hazardous material in 
transportation and are not substantively the same as requirements in 
the HMR, and (2) are an obstacle to the accomplishing and carrying out 
the Federal hazardous material transportation law and the HMR. In the 
notice, RSPA observed that IME's application did not indicate ``whether 
New Jersey's restrictions cause shipments of blasting caps and other 
explosives to be routed around the State of New Jersey, rather than on 
highways through the State,'' and RSPA requested an explanation of 
``the manner in which the New Jersey requirements are applied and 
enforced.'' 65 FR at 18423, 18424-25. The full text of IME's 
application was set forth in Appendix A to the notice.
    In response to the April 7, 2000 notice, comments were submitted by 
the Hazardous Materials Advisory Council (HMAC) and the International 
Society of Explosives Engineers (ISEE) in support of IME's application, 
and further comments were submitted by IME. No comments were received 
from the State of New Jersey or any of its agencies, and no person has 
opposed IME's application.

II. Federal Preemption

    Section 5125 of Title 49 U.S.C. contains several preemption 
provisions that are relevant to IME's application. Subsection (a) 
provides that--in the absence of a waiver of preemption by DOT under 
5125(e) or specific authority in another Federal law--a requirement of 
a State, political subdivision of a State, or Indian tribe is preempted 
if

    (1) Complying with a requirement of the State, political 
subdivision, or tribe and a requirement of this chapter or a 
regulation issued under this chapter is not possible; or
    (2) The requirement of the State, political subdivision, or 
tribe, as applied or enforced, is an obstacle to accomplishing and 
carrying out this chapter or a regulation prescribed under this 
chapter.

These two paragraphs set forth the ``dual compliance'' and ``obstacle'' 
criteria that RSPA had applied in issuing inconsistency rulings prior 
to 1990, under the original preemption provision in the Hazardous 
Materials Transportation Act (HMTA). Pub. L. 93-633, 112(a), 88 Stat. 
2161 (1975). The dual compliance and obstacle criteria are based on 
U.S. Supreme Court decisions on preemption. Hines v. Davidowitz, 312 
U.S. 52 (1941); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 
132 (1963); Ray v. Atlantic Richfield, Inc., 435 U.S. 151 (1978).
    Subsection (b)(1) of 49 U.S.C. 5125 provides that a non-Federal 
requirement concerning any of the following subjects, that is not 
``substantively the same as'' a provision of Federal hazardous material 
transportation law or a regulation prescribed under that law, is 
preempted unless it is authorized by another Federal law or DOT grants 
a waiver of preemption:

    (A) The designation, description, and classification of 
hazardous material.
    (B) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous material.
    (C) The preparation, execution, and use of shipping documents 
related to hazardous material and requirements related to the 
number, contents, and placement of those documents.

[[Page 30986]]

    (D) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material.
    (E) The design, manufacturing, fabricating, marking, 
maintenance, reconditioning, repairing, or testing of a packaging or 
a container represented, marked, certified, or sold as qualified for 
use in transporting hazardous material.

To be ``substantively the same,'' the non-Federal requirement must 
conform ``in every significant respect to the Federal requirement. 
Editorial and other similar de minimis changes are permitted.'' 49 CFR 
107.202(d).
    Subsection (c)(1) of 49 U.S.C. 5125 provides that, beginning two 
years after DOT prescribes regulations on standards to be applied by 
States and Indian tribes in establishing requirements on highway 
routing of hazardous materials,

    A State or Indian tribe may establish, maintain, or enforce a 
highway routing designation over which hazardous material may or may 
not be transported by motor vehicles, or a limitation or requirement 
related to highway routing, only if the designation, limitation, or 
requirement complies with section 5112(b).

Pursuant to 49 U.S.C. 5112(b), the Federal Motor Carrier Safety 
Administration (FMCSA) has issued standards that a State or Indian 
tribe must follow in establishing highway routing requirements for 
nonradioactive materials, in 49 CFR part 397, subpart C, which apply to 
any designations that are established or modified after November 14, 
1994. 49 CFR 397.69(a).
    These preemption provisions in 49 U.S.C. 5125 carry out Congress's 
view that a single body of uniform Federal regulations promotes safety 
in the transportation of hazardous materials. In considering the HMTA, 
the Senate Commerce Committee ``endorse[d] the principle of preemption 
in order to preclude a multiplicity of State and local regulations and 
the potential for varying as well as conflicting regulations in the 
area of hazardous materials transportation.'' S. Rep. No. 1102, 93rd 
Cong. 2nd Sess. 37 (1974). When it amended the HMTA in 1990, Congress 
specifically found that:

    (3) Many States and localities have enacted laws and regulations 
which vary from Federal laws and regulations pertaining to the 
transportation of hazardous materials, thereby creating the 
potential for unreasonable hazards in other jurisdictions and 
confounding shippers and carriers which attempt to comply with 
multiple and conflicting registration, permitting, routing, 
notification, and other regulatory requirements,
    (4) Because of the potential risks to life, property, and the 
environment posed by unintentional releases of hazardous materials, 
consistency in laws and regulations governing the transportation of 
hazardous materials is necessary and desirable,
    (5) In order to achieve greater uniformity and to promote the 
public health, welfare, and safety at all levels, Federal standards 
for regulating the transportation of hazardous materials in 
intrastate, interstate, and foreign commerce are necessary and 
desirable.

Pub. L. 101-615 section 2, 104 Stat. 3244.
    A Federal Court of Appeals has found that uniformity was the 
``linchpin'' in the design of the HMTA, including the 1990 amendments 
that expanded the original preemption provisions. Colorado Pub. Util. 
Comm'n v. Harmon, 951 F.2d 1571, 1575 (10th Cir. 1991). (In 1994, 
Congress revised, codified and enacted the HMTA ``without substantive 
change,'' at 49 U.S.C. chapter 51. Pub. L. 103-272, 108 Stat. 745.) To 
also achieve safety through consistent Federal and State requirements, 
Congress has authorized DOT to make grants to States ``for the 
development or implementation of programs for the enforcement of 
regulations, standards, and orders'' that are ``compatible'' with the 
highway-related portions of the HMR. 49 U.S.C. 31102(a). In this fiscal 
year, $155 million is available for grants to States under the Federal 
Motor Carrier Safety Assistance Program. See 49 CFR parts 350 & 355 and 
the preamble to FMCSA's March 21, 2000 final rule, 65 FR 15092, 15095-
96.
    Under 49 U.S.C. 5125(d)(1), any directly affected person may apply 
to the Secretary of Transportation for a determination whether a State, 
political subdivision or Indian tribe requirement is preempted. The 
Secretary of Transportation has delegated to RSPA the authority to make 
determinations of preemption, except for those concerning highway 
routing (which have been delegated to FMCSA). 49 CFR 1.53(b)
    Section 5125(d)(1) requires that notice of an application for a 
preemption determination must be published in the Federal Register. 
Following the receipt and consideration of written comments, RSPA 
publishes its determination in the Federal Register. See 49 CFR 
107.209(c). A short period of time is allowed for filing of petitions 
for reconsideration. 49 CFR 107.211(a). Any party to the proceeding may 
seek judicial review in a Federal district court. 49 U.S.C. 5125(f).
    Preemption determinations do not address issues of preemption 
arising under the Commerce Clause, the Fifth Amendment or other 
provisions of the Constitution or under statutes other than the Federal 
hazardous material transportation law unless it is necessary to do so 
in order to determine whether a requirement is authorized by another 
Federal law, or whether a fee is ``fair'' within the meaning of 49 
U.S.C. 5125(g)(1). A State, local or Indian tribe requirement is not 
authorized by another Federal law merely because it is not preempted by 
another Federal statute. Colorado Pub. Util. Comm'n v. Harmon, above, 
951 F.2d at 1581 n.10.
    In making preemption determinations under 49 U.S.C. 5125(d), RSPA 
is guided by the principles and policies set forth in Executive Order 
No. 13132, entitled ``Federalism.'' 64 FR 43255 (August 10, 1999). 
Section 4(a) of that Executive Order authorizes preemption of State 
laws only when a statute contains an express preemption provision, 
there is other clear evidence that Congress intended to preempt State 
law, or the exercise of State authority directly conflicts with the 
exercise of Federal authority. Section 5125 contains express preemption 
provisions, which RSPA has implemented through its regulations.

III. Discussion

    Blasting caps and electric blasting caps are classified in the HMR 
as ``detonators, non electric, for blasting'' and ``detonators, 
electric, for blasting,'' respectively, in Division 1.1B, 1.4B, or 1.4S 
(depending on their explosive properties). See 49 CFR 172.101 
(Hazardous Materials Table) and 173.52 (classification codes for 
explosives).\1\ The HMR include specific provisions for packaging 
detonators for transportation, including the exceptions set forth in 49 
CFR 173.63(f), (g). The HMR also provide that detonators and explosives 
may be transported on the same motor vehicle when certain conditions 
are met with regard to the manner in which the detonators are packaged 
and the containers on the vehicle in which packages are carried. 49 CFR 
177.835(g) (set out in full in Appendix A).
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    \1\ The words ``for blasting'' italicized in the Hazardous 
Materials Table are not part of the proper shipping name, 49 CFR 
172.101(c), but are used in the Table to distinguish blasting caps 
from other detonators for ammunition and detonating relays. See 49 
CFR 173.59 (description of the term ``detonators''). As used in this 
determination, the term ``blasting caps'' includes ``detonators for 
blasting, both electric and non-electric'' Id.
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    New Jersey has adopted the HMR as State law, in regulations of its 
Department of Transportation at N.J.A.C. 16:49-1.3(i), but the State 
separately prohibits the transportation of blasting caps on the same 
motor vehicle with more than 5,000 pounds of commercial explosives. The 
Explosives Act, as codified in N.J.S.A. 21:1A-128 et seq., contains 
provisions governing the

[[Page 30987]]

``Transportation of explosives'' at N.J.S.A. 21:1A-137, including the 
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following restriction:

    F. Blasting caps or electric blasting caps, or both, may be 
transported in the same vehicle with other commercial explosives 
only when the net weight of the other commercial explosives does not 
exceed 5,000 pounds.

    The Explosives Act provides that the Commissioner of the Department 
of Labor shall enforce that Act, prosecute violations, and ``state the 
items which are in violation of the provisions of the act or the 
precautions which he deems reasonably necessary to be taken.'' N.J.S.A. 
21:1A-130. The Explosives Act also provides in N.J.S.A. 21:1A-141 that 
it does not apply

to explosives which are in transit upon vessels, railroad cars or 
vehicles or while being held for delivery, when such transportation 
and delivery are under jurisdiction of and in conformity with 
regulations adopted by the Interstate Commerce Commission, the 
United States Coast Guard or the Civil Aeronautics Board, * * * \2\
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    \2\ The residual safety-related authority of the Interstate 
Commerce Commission and the Civil Aeronautics Board, both of which 
no longer exist, is now exercised by agencies within DOT.

    According to IME, in 1998, the New Jersey Department of Labor 
(NJDL) adopted and began enforcing regulations governing ``off-
highway'' transportation of explosives in N.J.A.C. 12:190-6.5, 
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including:

    (d) Blasting caps or electric blasting caps, or both, may be 
transported in the same vehicle with other commercial explosives 
only when the net weight of the other commercial explosives does not 
exceed 5,000 pounds.

    IME stated that a person using both blasting caps and more than 
5,000 pounds of other commercial explosives at a site within New Jersey 
must use separate vehicles to transport the blasting caps and the other 
commercial explosives, from the origin of the transportation to the job 
site. It stated that this requires the use of additional trucks and, 
``the more trucks on the road, irrespective of the cargo, the higher 
likelihood of an accident.'' With its application, IME provided 
affidavits from three companies stating that they transport blasting 
caps and explosives in separate vehicles to comply with New Jersey's 
requirements.
    In one of these affidavits, the president of Maurer & Scott, Inc. 
stated that this practice ``leads to more explosives vehicles on the 
road, trucks not loaded to capacity, inefficient transportation, excess 
handling of hazardous materials, and greater exposure to the public'' 
as well as ``more vehicles * * * at the minesite which creates an 
increased safety hazard.'' Attached to the affidavit from Maurer & 
Scott were copies of that company's applications for an exception to 
the restriction against transporting blasting caps in the same vehicle 
with more than 5,000 pounds of explosives, and letters from NJDL 
denying an exception.
    IME stated that the only alternative would be to transfer either 
the blasting caps or the other commercial explosives to a separate 
vehicle at some point before leaving the public highway at the job 
site. However, IME indicated that this would violate a prohibition in 
the HMR against the transfer of Division 1.1, 1.2, or 1.3 explosive 
materials between vehicles ``on any public highway, street, or road, 
except in case of emergency.'' 49 CFR 177.835(j).\3\ IME stated that 
transferring the blasting caps or explosives to another vehicle would 
involve ``the added risk from the unnecessary handling during loading 
or re-loading to conform explosive/detonator shipments to New Jersey's 
restrictions.''
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    \3\ According to IME, NJDL seems to take the position that the 
restriction in the Explosives Act ``applies to any transportation in 
the State,'' but it is uncertain whether that prohibition is self-
executing or whether NJDL must issue regulations under the authority 
conferred in N.J.S.A. 21:1A-130 before the restriction applies to an 
explosives carrier. If the restriction in the Explosives Act is 
self-executing, it would also not allow blasting caps and explosives 
to be transported into New Jersey and then separated onto different 
vehicles before leaving the highway to enter the job site.
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    IME, HMAC, and ISEE all stated that New Jersey's statutory and 
regulatory prohibitions against transporting blasting caps on the same 
motor vehicle with more than 5,000 pounds of commercial explosives are 
preempted because they are not substantively the same as requirements 
in the HMR on the ``handling * * * of hazardous material.'' 49 U.S.C. 
5125(b)(1)(B). Alternatively, IME stated that these restrictions are 
``a detriment to safety'' and are preempted as an ``obstacle to 
accomplishing and carrying out'' the HMR. 49 U.S.C. 5125(a)(2).
    IME acknowledged ``the authority of the State to regulate the 
movement of explosives that is outside the scope of'' Federal hazardous 
material transportation law and the HMR, but stated that NJDL does not 
interpret its regulation to apply only to ``vehicles transporting 
explosives between locations on one site where a public way is never 
entered or crossed.'' According to IME, that agency's position is that 
vehicles carrying both blasting caps and more than 5,000 pounds of 
explosives would be in violation of N.J.A.C. 12:190-6.5(d) ``the moment 
they left a public road.''
    HMAC stated that the ``critical'' issue in this proceeding is 
whether N.J.A.C. 12:190-6.5(d) applies to transportation ``in 
commerce.'' It commented that, because ``the New Jersey off-highway 
regulation is not limited to transportation occurring entirely on 
private property,'' it affects motor vehicles transporting Class 1 
materials ``over the public roads of the State to consignee sites where 
these materials are unloaded/loaded prior to further commercial 
movement of the vehicle on those public ways.''
    In its further comments, IME stated that NJDL appears to define 
``off-highway'' in a manner that applies the prohibition in N.J.A.C. 
12:190-6.5(d) to ``sites where the vehicle is being loaded or unloaded, 
[and] also off-highway locations where a driver may stop for food, 
fuel, rest or comfort.'' Unfortunately, no representative of the State 
of New Jersey submitted comments to explain how the exception for 
``explosives which are in transit'' in N.J.S.A. 21:1A-141 is 
interpreted and applied to the transportation of detonators and 
explosives on the same vehicle in accordance with 49 CFR 177.835(g).
    The HMR ``govern safety aspects of the transportation of hazardous 
material [DOT] considers appropriate.'' 49 U.S.C. 5103(b)(1)(B). They 
apply to the ``offering of hazardous materials for transportation and 
transportation of hazardous materials in interstate, intrastate, and 
foreign commerce by * * * motor vehicle.'' 49 CFR 171.1(a)(1). The HMR 
set forth specific provisions on the manner in which hazardous 
materials are packaged for transportation and loaded on a motor 
vehicle, including the conditions in 49 CFR 177.835(g) under which 
detonators and explosives may be carried on the same motor vehicle. The 
HMR also contain provisions on the manner in which hazardous materials 
are unloaded from a motor vehicle. These requirements for loading 
hazardous materials on a vehicle, and which materials may be carried on 
the same vehicle, are clearly within the HMR's provisions on the 
``handling'' of hazardous materials.
    Whenever the loading or unloading of hazardous materials is 
``incidental to the movement'' of those materials on a public roadway, 
that loading or unloading is a ``safety aspect'' and part of the 
transportation of the hazardous materials ``in commerce,'' subject to 
the requirements of the HMR, regardless of whether the loading or 
unloading takes

[[Page 30988]]

place on private property. See 49 U.S.C. 5102(12) (defining 
``transportation'').
    In this case, the affidavits submitted with IME's application 
state, without contradiction from NJDL, that New Jersey's prohibitions 
against carrying blasting caps on the same motor vehicle with more than 
5,000 pounds of explosives affect and restrict the transportation of 
those hazardous materials on the public roadways. Those affidavits and 
the comments in this proceeding also support a conclusion, without 
contradiction from NJDL, that greater safety results when blasting caps 
and explosives are transported on the same vehicle in accordance with 
the conditions in 49 CFR 177.835(g), than when blasting caps and 
explosives must be transported on separate vehicles or transferred 
between vehicles at some point before leaving a public road to enter 
the delivery location.
    To the extent that New Jersey's restrictions are interpreted and 
applied only to on-site storage, either before transportation begins or 
after transportation ends, they are not preempted by Federal hazardous 
materials transportation law. However, these restrictions are preempted 
when they are interpreted and applied to prohibit the transportation of 
detonators on the same motor vehicle with more than 5,000 pounds of 
explosives, while on a public road or during activities on private 
property that are incidental to the movement of property and involve a 
safety aspect of transportation on a public road. In the latter 
situations, New Jersey's restrictions in N.J.S.A. 21:1A-137F and 
N.J.A.C. 12:190-6.5(d) are preempted by 49 U.S.C. 5125(a)(2) and 
5125(b)(1)(B), because these prohibitions are an obstacle to carrying 
out and accomplishing the safe transportation of hazardous materials as 
permitted by 49 CFR 177.835(g) and they are not substantively the same 
as the requirements in 49 CFR 177.835(g) on the handling of hazardous 
materials.
    Because New Jersey's restrictions in N.J.S.A. 21:1A-137F and 
N.J.A.C. 12:190-6.5(d) are preempted by 49 U.S.C. 5125(a)(2) and 
5125(b)(1)(B), it is unnecessary to address the separate issue, raised 
in RSPA's April 7, 2000 notice, whether these restrictions are 
preempted by 49 U.S.C. 5125(c)(1) as a highway routing limitation that 
fails to comply with FMCSA's standards in 49 CFR part 397.

IV. Ruling

    Federal hazardous material transportation law preempts N.J.S.A. 
21:1A-137F and N.J.A.C. 12:190-6.5(d) when those provisions are 
interpreted and applied to prohibit the transportation of blasting caps 
(including electric blasting caps) on the same motor vehicle with more 
than 5,000 pounds of explosives, while on a public road or during 
activities on private property that are incidental to the movement of 
property and involve a safety aspect of transportation on a public 
road.

V. Petition for Reconsideration/Judicial Review

    In accordance with 49 CFR 107.211(a), any person aggrieved by this 
decision may file a petition for reconsideration within 20 days of 
publication of this decision in the Federal Register. Any party to this 
proceeding may seek review of RSPA's decision ``in an appropriate 
district court of the United States * * * not later than 60 days after 
the decision becomes final.'' 49 U.S.C. 5125(f). New Jersey is 
considered a party to this proceeding concerning a State law and a 
regulation issued by an agency of the State, despite the fact that NJDL 
did not submit comments.
    This decision will become RSPA's final decision 20 days after 
publication in the Federal Register if no petition for reconsideration 
is filed within that time. The filing of a petition for reconsideration 
is not a prerequisite to seeking judicial review of this decision under 
49 U.S.C. 5125(f).
    If a petition for reconsideration of this decision is filed within 
20 days of publication in the Federal Register, the action by RSPA's 
Associate Administrator for Hazardous Materials Safety on the petition 
for reconsideration will be RSPA's final decision. 49 CFR 107.211(d).

    Issued in Washington, DC on June 4, 2001.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety.

Appendix A

    49 CFR 177.835 Class I (explosive materials)
* * * * *
    (g) No detonator assembly or booster with detonator may be 
transported on the same motor vehicle with any Division 1.1, 1.2 or 
1.3 material (except other detonator assemblies, boosters with 
detonators or detonators), detonating cord Division 1.4 material or 
Division 1.5 material. No detonator may be transported on the same 
motor vehicle with any Division 1.1, 1.2 or 1.3 material (except 
other detonators, detonator assemblies or boosters with detonators), 
detonating cord Division 1.4 material or Division 1.5 material 
unless--
    (1) It is packed in a specification MC 201 (Sec. 178.318 of this 
subchapter) container; or
    (2) The package conforms with requirements prescribed in 
Sec. 173.63 of this subchapter, and its use is restricted to 
instances when--
    (i) There is no Division 1.1, 1.2, 1.3 or 1.5 material loaded on 
the same motor vehicle; and
    (ii) A separation of 61 cm (24 inches) is maintained between 
each package of detonators and each package of detonating cord; or
    (3) It is packed and loaded in accordance with a method approved 
by the Department. One method approved by the Department requires 
that--
    (i) The detonators are in packagings as prescribed in 
Sec. 173.63 of this subchapter which in turn are loaded into 
suitable containers or separate compartments; and
    (ii) That both the detonators and the container or compartment 
meet the requirements of the Institute of Makers of Explosives' 
Safety Library Publication No. 22 (incorporated by reference, see 
Sec. 171.7 of this subchapter).

[FR Doc. 01-14496 Filed 6-7-01; 8:45 am]
BILLING CODE 4910-60-U