[Federal Register Volume 68, Number 19 (Wednesday, January 29, 2003)]
[Proposed Rules]
[Pages 4402-4405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1945]
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DEPARTMENT OF THE TREASURY
Bureau of Alcohol, Tobacco and Firearms
27 CFR Part 55
[Notice No. 969]
RIN 1512-AC80
Explosive Pest Control Devices (2002R-285P)
AGENCY: Bureau of Alcohol, Tobacco and Firearms (ATF), Department of
the Treasury.
ACTION: Notice of proposed rulemaking.
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SUMMARY: Based, in part, on a petition we have received, the Bureau of
Alcohol, Tobacco and Firearms (ATF) is proposing to amend the
regulations to provide a limited exemption from the requirements of
part 55 for individuals having a legitimate need to use explosive pest
control devices for wildlife management purposes. The proposed
regulations are intended to facilitate the acquisition of these devices
by those individuals who have a legitimate pest control need.
DATES: ATF must receive all comments on or before February 28, 2003.
ADDRESSES: Send written comments to: James P. Ficaretta, Program
Manager; Room 5150; Bureau of Alcohol, Tobacco and Firearms; PO Box
50221; Washington, DC 20091-0221; ATTN: Notice No. 969. Written
comments must be signed and may be of any length.
E-mail comments may be of any length and should be submitted to:
[email protected]. E-mail comments must contain your name, mailing address,
and e-mail address. They must also reference this notice number and be
legible when printed on paper that is 8\1/2\'' x 11'' in size. We will
treat e-mail as originals and we will not acknowledge receipt of e-
mail. See the Public Participation section at the end of this notice
for requirements for submitting written comments by facsimile.
FOR FURTHER INFORMATION CONTACT: James P. Ficaretta, Firearms,
Explosives, and Arson, Bureau of Alcohol, Tobacco and Firearms, 650
Massachusetts
[[Page 4403]]
Avenue, NW., Washington, DC 20226; telephone (202) 927-8210.
SUPPLEMENTARY INFORMATION:
Background
The Bureau of Alcohol, Tobacco and Firearms (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 of explosive materials. Under
section 847 of title 18, U.S.C., the Secretary of the Treasury ``may
prescribe such rules and regulations as 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 55 (``Commerce in Explosives'').
The term ``explosive materials,'' as defined in section 55.11,
means explosives, blasting agents, water gels, and detonators. The term
includes, but is not limited to, all items in the ``List of Explosive
Materials'' provided for in section 55.23. Section 55.202 provides that
there are three classes of explosive materials: (1) High explosives
(e.g., dynamite, flash powders, and bulk salutes); (2) low explosives
(e.g., black powder, safety fuses, igniters, igniter cords, fuse
lighters, and display fireworks (except bulk salutes)); and (3)
blasting agents (e.g., ammonium nitrate-fuel oil and certain water
gels).
Under the law and its implementing regulations (section 55.41),
persons engaging in the business of manufacturing, importing, or
dealing in explosive materials are required to be licensed. In general,
persons acquiring or receiving explosive materials in interstate
commerce for their own use are required to obtain a permit.
Licensees and permittees must comply with the provisions of part
55, including those relating to storage and other safety requirements,
as well as recordkeeping and theft reporting requirements. However,
certain items and activities have been given exempt status under the
law (18 U.S.C. 845) and its implementing regulations (section 55.141).
For example, the provisions of part 55 do not apply to the
transportation, shipment, receipt, or importation of explosive
materials for delivery to any agency of the United States or to any
State or its political subdivision.
Explosive Pest Control Devices
Explosive pest control devices contain black powder, flash powder,
and/or a similar pyrotechnic composition. Many of these devices contain
flash powder, a high explosive, as the component that produces the
audible report. These devices are used for wildlife management purposes
as an effective deterrent and are necessary for pest control efforts
within the agricultural, aquacultural (commercial fishing operations),
horticultural, and aviation industries. Commonly known as ``bird
bombs,'' ``shell crackers,'' ``seal bombs,'' etc., explosive pest
control devices are used to deter wildlife pests without harming them.
Generally, the current regulations in part 55 require that persons
acquiring or receiving explosive materials in interstate commerce must
possess a license or permit. Thus, prior to acquiring any explosive
pest control devices in interstate commerce, persons must submit an
application for a license or permit to ATF along with the appropriate
fee. The issuance of a license or permit can be a lengthy process.
Consequently, the threat and damage to crops, aircraft, etc., may have
long passed before a person with a legitimate need for the devices has
obtained the necessary license or permit. In addition, the requirement
to obtain a license or permit can be cost prohibitive, particularly in
instances where persons have only an intermittent need for using
explosive pest control devices.
Reed-Joseph Petition
ATF received a petition, dated April 30, 2001, filed by Reed-Joseph
International Company (Reed-Joseph), requesting an amendment of the
explosives regulations. Specifically, Reed-Joseph requested an
amendment of section 55.141(a) to provide that the requirements of part
55 not apply to the importation and distribution of certain 15 mm and
18.2 mm pyrotechnic devices used for wildlife damage control purposes.
As suggested by Reed-Joseph, a new exception would specify that the
provisions of part 55 would not apply to:
The importation and distribution of 15 MM and 18.2 MM pyrotechnic
devices for animal damage control purposes with U.S. Department of
Transportation ``Classification of Explosives'' as follows:
U.N. Proper Shipping Name and Number: Articles, Explosive, n.o.s., UN
0471. U.N. Classification Code: 1.4E. Reference Number: EX-9810074.
Product Designation/Part Number: (F105 AZ F 0626 073 Ind A). CAPA
Cartridge (18.2 MM). and
U.N. Proper Shipping Name and Number: Articles, Explosive, n.o.s., UN
0349. U.N. Classification Code: 1.4 S. Reference Number: EX-9806011.
Product Designation/Part Number: Screamer Siren Scare Cartridge 15 MM.
and
U.N. Proper Shipping Name and Number: Articles, Explosive, n.o.s. (Bird
scaring devices), UN 0471. U.N. Classification Code: 1.4 E. Reference
Number: EX-9704086. Product Designation/Part Number: Report Cartridge--
Bird Banger 15 MM. and
U.N. Proper Shipping Name and Number: Articles, Explosive, n.o.s. (Bird
scaring devices), UN 0471. U.N. Classification Code: 1.4 E. Reference
Number: EX-8602015. Product Designation/Part Number: Pest Control
Cartridge (15 MM). and
U.N. Proper Shipping Name and Number: Articles, Explosive, n.o.s. (Bird
scaring devices), UN 0349. U.N. Classification Code: 1.4 S. Reference
Number: EX-8304001. Product Designation/Part Number: Bird Whistler (15
MM).
In its petition, Reed-Joseph states that to its knowledge, no 15 mm
or 18.2 mm wildlife damage control pyrotechnic devices are manufactured
in the United States and that there are only two companies that import
and distribute 15 mm or 18.2 mm pyrotechnics used for wildlife damage
control, Reed-Joseph and Sutton Ag Enterprises of Salinas, California.
As such, the petitioner contends that by limiting exemptions to 15 mm
and 18.2 mm wildlife damage control pyrotechnics imported by reputable
and licensed firms, ATF will be able to separate firms meeting
legitimate wildlife control damage control needs from those that will
sell these devices to the general public. The petitioner also states
that these pyrotechnics ``may only be fired from hand-held launchers
that use .22 caliber blank cartridges as ignition source or Very-type
flare launchers.''
Discussion/Proposed Amendments
ATF recognizes that the use of explosive pest control devices can
be an important part of an effective wildlife management program within
the agricultural, aquacultural, horticultural, and aviation industries.
We also recognize that the current regulations in part 55 impose a
significant hardship on these affected industries, particularly with
respect to licensing and permit requirements and requirements
concerning the storage of explosives. As indicated, farmers, ranchers,
etc. often have an immediate need for these pest control devices and
any delay in
[[Page 4404]]
acquiring them can result in serious and significant consequences.
Accordingly, we are proposing to amend the regulations to provide a
limited exemption from the requirements of part 55 for persons having a
legitimate need to use explosive pest control devices. As proposed, the
term ``explosive pest control device'' will be defined as any explosive
device that is designed and intended solely for use in controlling
wildlife pests and that has a container that is a cardboard/pasteboard-
type tube not exceeding 4 inches in length and 3/4 inch in diameter or
a shotgun shell type container. Explosive pest control devices may
contain only pyrotechnic compositions, e.g., black powder, flash
powder, or smokeless powder. The component that produces the audible
report may not contain more than 40 grains (2.592 grams) of explosive
composition. These devices must have been tested, classified, and
approved by the U.S. Department of Transportation.
The proposed definition of the term ``explosive pest control
device'' is not limited to 15 mm and 18.2 mm wildlife damage control
pyrotechnic devices (that can only be fired from hand-held launchers)
as requested by Reed-Joseph in its petition. Based on information we
have obtained, it is clear that there are many types of explosive pest
control devices available to those persons who have legitimate pest
control needs. For example, according to the U.S. Department of
Agriculture, problems associated with large concentrations of birds,
e.g., depredation of agricultural crops, creation of health hazards,
etc., can be reduced through the use of 12-gauge exploding shells (also
known as ``shell crackers'') fired from a shotgun, or 15 mm or 17 mm
pyrotechnics fired from a pistol. The Department of Agriculture states
that rope firecrackers (also known as ``rope salutes'') are also useful
in frightening birds. With this particular device, the fuses of large
firecrackers are inserted through cotton rope. As the rope burns, the
fuses are ignited.
To ensure that explosive pest control devices will not be obtained
for illicit purposes, the proposed regulations require that persons
acquiring such devices must complete an ATF form certifying, under
penalty of perjury, that their use of the devices will be solely for
legitimate wildlife pest control purposes and that they are not
prohibited by law from possessing explosive materials. The form will be
retained by the licensee or permittee as part of his permanent records.
In considering the appropriate storage of explosive pest control
devices, we have noted that these devices often contain flash powder as
the audible charge used to frighten wildlife pests. Therefore, they are
considered high explosives and would ordinarily be required to be
stored in a type-1 or type-2 storage magazine. ATF believes that
persons acquiring explosive pest control devices will, for the most
part, be storing these devices at intermittent times for specific uses
and will only be storing small quantities. In addition, we believe that
acquiring type-1 and type-2 explosives storage magazines will be cost
prohibitive for most end-users due to the infrequent need and use of
these devices. Accordingly, we are proposing that explosive pest
control devices that are maintained in their original shipping packages
may be stored in a type-4 magazine or other similar storage container
that is approved by the Director in accordance with the provisions of
Sec. 55.22 and that provides an equivalent level of safety and
security. We believe that this will ensure a sufficient level of
security from theft and, if the explosive pest control devices are
maintained in their original shipping packages, will provide a
sufficient safeguard against accidental mass explosion.
Except as provided, the proposed regulations do not apply to
persons operating businesses that provide on-site wildlife pest control
services using explosive pest control devices. Such persons will be
required to obtain, at a minimum, a Federal explosives permit and must
comply with all applicable provisions of 18 U.S.C. chapter 40 and the
regulations in part 55. Unlike farmers and others whose crops, etc.,
might be endangered if they were made to await issuance of an
explosives permit, businesses providing pest control services using
explosive pest control devices do not operate under the same time
constraints. Moreover, these businesses are likely to maintain large
quantities of explosive pest control devices. Similarly, those engaged
in the business of dealing, importing, and/or manufacturing explosive
pest control devices must obtain Federal explosives licenses and must
comply with the applicable provisions of 18 U.S.C. chapter 40 and the
regulations in part 55.
How This Document Complies With the Federal Administrative Requirements
for Rulemaking
A. Executive Order 12866
We have determined that this proposed regulation is not a
significant regulatory action as defined by Executive Order 12866.
Therefore, a Regulatory Assessment is not required.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
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. We hereby certify that this proposed
regulation, if adopted, will not have a significant economic impact on
a substantial number of small entities. Indeed, the proposed
regulations will reduce the burden placed on small businesses.
C. Paperwork Reduction Act
The collections of information contained in this notice of proposed
rulemaking have been submitted to the Office of Management and Budget
for review in accordance with the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)). Comments on the collections of information should be
sent to the Office of Management and Budget, Attention: Desk Officer
for the Bureau of Alcohol, Tobacco and Firearms, Office of Information
and Regulatory Affairs, Washington, DC 20503, with copies to the Chief,
Document Services Branch, Room 3110, Bureau of Alcohol, Tobacco and
Firearms, at the address previously specified. Comments are
specifically requested concerning:
[sbull] Whether the proposed collections of information are
necessary for the proper performance of the functions of the Bureau of
Alcohol, Tobacco and Firearms, including whether the information will
have practical utility;
[sbull] The accuracy of the estimated burden associated with the
proposed collections of information (see below);
[sbull] How the quality, utility, and clarity of the information to
be collected may be enhanced; and
[sbull] How the burden of complying with the proposed collections
of information may be minimized, including through the application of
automated collection techniques or other forms of information
technology.
The collections of information in this proposed regulation are in
27 CFR 55.141(c). This information is required to ensure that persons
acquiring explosive pest control devices will be using such devices for
legitimate wildlife pest control purposes. The collections of
information are
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mandatory. The likely respondents are individuals and businesses.
[sbull] Estimated total annual reporting and/or recordkeeping
burden: 3,000 hours.
[sbull] Estimated average burden hours per respondent and/or
recordkeeper: 0.33 hours (20 minutes).
[sbull] Estimated number of respondents and/or recordkeepers:
4,500.
[sbull] Estimated annual frequency of responses: 2.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a valid
control number assigned by the Office of Management and Budget. This
collection is associated with the forthcoming certification form, ATF F
5430.1. The estimated burden for this regulation revision is 1 hour.
Public Participation
We are requesting comments on the proposed regulations from all
interested persons. In addition, we are specifically requesting
comments on the clarity of this proposed rule and how it may be made
easier to understand.
Comments received on or before the closing date will be carefully
considered. Comments received after that date will be given the same
consideration if it is practical to do so, but assurance of
consideration cannot be given except as to comments received on or
before the closing date.
ATF will not recognize any material in comments as confidential.
Comments may be disclosed to the public. Any material that the
commenter considers to be confidential or inappropriate for disclosure
to the public should not be included in the comment. The name of the
person submitting a comment is not exempt from disclosure.
A. Submitting Comments by Fax
You may submit written comments by facsimile transmission to (202)
927-8525. Facsimile comments must:
[sbull] Be legible;
[sbull] Reference this notice number;
[sbull] Be 8\1/2\'' x 11'' in size;
[sbull] Contain a legible written signature; and
[sbull] Be not more than five pages long.
We will not acknowledge receipt of facsimile transmissions. We will
treat facsimile transmissions as originals.
B. Request for Hearing
Any interested person who desires an opportunity to comment orally
at a public hearing should submit his or her request, in writing, to
the Director within the 30-day comment period. The Director, however,
reserves the right to determine, in light of all circumstances, whether
a public hearing is necessary.
C. Disclosure
Copies of this notice and the comments received will be available
for public inspection by appointment during normal business hours at:
ATF Reference Library, Room 6480, 650 Massachusetts Avenue, NW.,
Washington, DC; telephone (202) 927-7890.
D. Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in the Federal Register in April and October of each year. The RIN
contained in the heading of this document can be used to cross-
reference this action with the Unified Agenda.
E. Drafting Information
The author of this document is James P. Ficaretta, Firearms,
Explosives, and Arson, Bureau of Alcohol, Tobacco and Firearms.
List of Subjects in 27 CFR Part 55
Administrative practice and procedure, Authority delegations,
Customs duties and inspection, Explosives, Hazardous materials,
Imports, Penalties, Reporting and recordkeeping requirements, Safety,
Security measures, Seizures and forfeitures, Transportation, and
Warehouses.
Authority and Issuance
For the reasons discussed in the preamble, the Bureau of Alcohol,
Tobacco and Firearms proposes to amend 27 CFR Part 55 as follows:
PART 55--COMMERCE IN EXPLOSIVES
Paragraph 1. The authority citation for 27 CFR Part 55 continues to
read as follows:
Authority: 18 U.S.C. 847.
Par. 2. Section 55.141 is amended by adding new paragraph (c) to
read as follows:
Sec. 55.141 Exemptions.
* * * * *
(c) Explosive pest control devices. (1) For purposes of this
paragraph (c), ``explosive pest control device'' means any explosive
device that is designed and intended solely for use in controlling
wildlife pests and that has a container that is a cardboard/pasteboard-
type tube not exceeding 4 inches in length and \3/4\ inch in diameter
or a shotgun shell type container. Explosive pest control devices may
contain only pyrotechnic compositions, e.g., black powder, flash
powder, or smokeless powder. The component that produces the audible
report may not contain more than 40 grains (2.592 grams) of explosive
composition. Explosive pest control devices must have been tested,
classified, and approved by the U.S. Department of Transportation.
(2)(i) Except for the provisions applicable to persons required
under subpart D to obtain licenses or permits, this part does not apply
to the receipt, possession, transportation, or shipment of explosive
pest control devices when acquired by persons who have a legitimate
wildlife pest control use for the devices and who have completed ATF
Form 5400.XX certifying, under penalty of perjury, that their use of
the devices will be for legitimate wildlife pest control purposes. Form
5400.XX will be retained by the licensee or permittee as part of his
permanent records in accordance with Sec. 55.121. This exemption does
not apply to persons operating businesses that provide on-site wildlife
pest control services using explosive pest control devices.
(ii) Explosive pest control devices are subject to the storage
requirements prescribed in subpart K; however, explosive pest control
devices that will be used for legitimate wildlife pest control purposes
may be stored in a type-4 magazine or other similar storage container
that is approved by the Director in accordance with the provisions of
Sec. 55.22 and that provides an equivalent level of safety and
security if such devices remain in packaging designed to prevent mass
detonation (e.g., the type of packaging in which explosive pest control
devices are generally shipped).
Signed: December 18, 2002.
Bradley A. Buckles,
Director.
Approved: January 14, 2003.
Timothy E. Skud,
Deputy Assistant Secretary, (Regulatory, Tariff and Trade Enforcement).
[FR Doc. 03-1945 Filed 1-28-03; 8:45 am]
BILLING CODE 4810-31-P