[Federal Register Volume 68, Number 176 (Thursday, September 11, 2003)]
[Rules and Regulations]
[Pages 53509-53513]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23093]


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DEPARTMENT OF JUSTICE

Bureau of Alcohol, Tobacco, Firearms and Explosives

27 CFR Part 555

[ATF No. 2; AG Order No. 2683-2003 and Docket No. ATF2002R-341P]
RIN 1140-AA20


Implementation of the Safe Explosives Act, Title XI, Subtitle C 
of Public Law 107-296--Delivery of Explosive Materials by Common or 
Contract Carrier

AGENCY: Bureau of Alcohol, Tobacco, Firearms and Explosives; Department 
of Justice.

[[Page 53510]]


ACTION: Interim final rule with request for comments.

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SUMMARY: The Department of Justice is amending current regulations of 
the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to remove 
the requirement that common or contract carriers taking possession of 
explosive materials for delivery to a licensee or permittee complete 
ATF Form 5400.8 (Explosives Delivery Record) prior to taking possession 
of explosive materials, regardless of whether they are hired by the 
distributor or by the distributee. ATF believes that this requirement 
is unduly burdensome and unnecessary. Furthermore, ATF does not believe 
that the elimination of this form will result in diversion of explosive 
materials to criminal or terrorist use. ATF will continue to require 
distributors of explosive materials to verify the identity of persons 
accepting possession of explosive materials for common or contract 
carriers, and will require distributors to record the name of the 
common or contract carrier and the full name of the driver in their 
permanent records.
    The interim rule will remain in effect until superseded by final 
regulations.

DATES: Effective date: This interim rule is effective September 11, 
2003.
    Comment date: Comments must be submitted on or before October 14, 
2003.

ADDRESSES: Send written comments to: James P. Ficaretta, Program 
Manager; Room 5150; Bureau of Alcohol, Tobacco, Firearms and 
Explosives; P.O. Box 50221; Washington, DC 20091-0221; ATTN: ATF No. 2. 
Written comments must include your mailing address and be signed, and 
may be of any length.
    E-mail comments may be submitted to: [email protected]. E-mail comments 
must contain your name, mailing address, and e-mail address. They must 
also reference this document number, as noted above, and be legible 
when printed on 8\1/2\'' x 11'' paper. ATF will treat e-mail as 
originals and ATF will not acknowledge receipt of e-mail. See the 
Public Participation section at the end of the SUPPLEMENTARY 
INFORMATION section for requirements for submitting written comments by 
facsimile.

FOR FURTHER INFORMATION CONTACT: James P. Ficaretta; Firearms, 
Explosives and Arson; Bureau of Alcohol, Tobacco, Firearms and 
Explosives; U.S. Department of Justice; 650 Massachusetts Avenue, NW., 
Washington, DC 20226, telephone (202) 927-8203.

SUPPLEMENTARY INFORMATION: 

Background

    On March 20, 2003, ATF published in the Federal Register an interim 
final rule (68 FR 13768) implementing the Safe Explosives Act (SEA) 
(Title XI, Subtitle C of Public Law 107-296). The SEA, among other 
things, requires that all persons receiving explosives on and after May 
24, 2003, obtain a Federal license or permit, and creates a new type of 
permit, the ``limited permit.'' Except as otherwise provided, the 
interim rule became effective upon the date of publication in the 
Federal Register.

Delivery of Explosive Materials by Common or Contract Carrier

    In the preamble of the interim rule, ATF stated that on and after 
May 24, 2003, all common or contract carriers taking possession of 
explosive materials for delivery to a Federal explosive licensee or 
permittee (including a limited permittee) must complete an ATF Form 
5400.8 (Explosives Delivery Record) prior to taking possession of the 
explosive materials. Specifically, ATF required common or contract 
carriers to document and certify certain identifying information. ATF 
also required distributors to verify the identity of the driver and to 
provide information regarding the distributee. This form is required 
only when delivery occurs by common or contract carrier and is not 
dependent on whether the carrier is hired by the distributor or 
distributee. Regulations that implement these requirements are 
contained in 27 CFR 555.103(b)(3) and 555.105(b)(6)(iii) and (iv). The 
form is not required when employees of distributors or distributees 
make delivery.
    The primary purpose of ATF Form 5400.8 is to require verification 
of the identity of employees of common or contract carriers taking 
possession of explosive materials. 68 FR at 13771. Under ATF's 
longstanding position since 1970, employees of common or contract 
carriers have been subject to prohibitions under 18 U.S.C. 842(i) 
proscribing the transportation, shipment, receipt, or possession of 
explosives by persons convicted of or under indictment for felony 
offenses, fugitives, substance abusers, and mental defectives. The SEA, 
among other things, expanded these categories of prohibited persons to 
include aliens (with limited exceptions), dishonorable dischargees, and 
renunciants. However, there is no authority in the SEA for ATF to 
conduct background checks on employees of common or contract carriers 
to ensure that such persons are not, for example, convicted felons, 
fugitives, or aliens. ATF believes that, absent background checks, ATF 
should collect information to properly document and verify identities 
of commercial drivers to reduce the potential for diversion to criminal 
or terrorist use.
    On May 5, 2003, shortly after publication of ATF's interim rule, 
the Department of Transportation (DOT) and the Department of Homeland 
Security promulgated three interim final rules generally exempting 
persons engaged in the commercial transportation of explosives from the 
application of 18 U.S.C. 842(i) while they are engaged in such 
transportation by motor carrier, water, and air. See 68 FR 23832 
(Research and Special Programs Administration, DOT), 23844 (Federal 
Motor Carrier Safety Administration, DOT), 23852 (Transportation 
Security Administration (TSA), DHS) (to be codified at 49 CFR). On June 
9, 2003, DOT and TSA also published a notice that extended this 
exemption to persons engaged in the commercial transportation of 
explosives via rail (68 FR 34470).
    Additionally, on February 3, 2003, TSA, then an agency of DOT, 
promulgated regulations effectively allowing aliens to transport, ship, 
receive, and possess explosives incident to and in connection with the 
commercial transport of explosives by motor carrier or rail into the 
United States from Canada. This rule generally exempted such persons 
from the general prohibitions of 18 U.S.C. 842(i)(5). See 68 FR 6083 
(February 6, 2003) (to be codified at 49 CFR Part 1572).
    As a consequence, upon publication of the DOT and TSA rules, 
certain employees of motor, water, air, and rail carriers are no longer 
subject to 18 U.S.C. 842(i) while they are engaged in the commercial 
transportation of explosives. Rather, these employees are subject to 
DOT and TSA security threat assessment standards. To evaluate relevant 
security threat assessments, DOT and TSA now collect specific 
information to ensure that employees of common or contract carriers 
transporting explosives do not pose a security threat. Thus, ATF finds 
that there is a significantly diminished need to collect similar 
information via the ATF Form 5400.8 to ensure that explosives are not 
placed in the hands of prohibited persons for possible diversion to 
criminal or terrorist use.
    In addition, while not explicitly stated in the interim rule, ATF 
also collects certain information on ATF Form 5400.8 to enable tracing 
of explosives deliveries by a distributor to a common or contract 
carrier. For

[[Page 53511]]

example, if a distributee reports a shipment of explosives as lost or 
stolen, ATF can request the ATF Form 5400.8 from the distributor in 
order to properly identify the trucking company and the name of the 
specific employee who initially picked up the explosives. ATF believes 
that this information, documenting the movement of explosives from the 
distributor to the carrier, assists in reducing possible diversion of 
explosives to criminal or terrorist use.
    Since 1971, ATF has imposed certain identification requirements 
upon common or contract carrier employees. For example, ATF has 
required documentation of the name, resident address, and identifying 
information of common or contract carrier employees. ATF also has 
required information related to the employee's driver's license number 
and identification document. ATF has provided the employees the option, 
however, to omit the latter information if the driver was ``known'' to 
the distributor. In the interim rule, ATF strengthened these 
requirements to ensure that the driver's identity in each case was 
properly and adequately documented and verified. ATF believes that this 
additional information further assists in documenting explosives 
movement and reduces possible criminal or terrorist diversion.
    Based on preliminary comments on the initial interim rule, ATF has 
concluded that some of the information required on the ATF Form 5400.8 
is not needed to trace delivery of explosives to a common or contract 
carrier. In light of this conclusion, as well as the recent DOT/TSA 
interim rules, ATF finds that there is no longer a significant reason 
to collect all of the information required by the ATF Form 5400.8. ATF 
will continue to require that distributors verify the identity of 
persons accepting possession of explosive materials for common or 
contract carriers, and record the name of the common or contract 
carrier and the full name of the driver. However, ATF will no longer 
require that this information be recorded on the ATF Form 5400.8. 
Instead, ATF will allow distributors to record the information in their 
permanent records. Because all pertinent information will be recorded 
in a distributor's permanent records, ATF does not believe that the 
elimination of this form will result in diversion of explosive 
materials to criminal or terrorist use.
    Distributors will be required to verify the identity of the person 
accepting possession for the common or contract carrier by examining 
such person's valid, unexpired driver's license issued by any State, 
Canada, or Mexico. Distributors must record the name of the common or 
contract carrier and the full name of the driver in the distributor's 
permanent records that are required by 27 CFR 555.121. Current 
regulations governing required records also mandate the recording of, 
among other things, the date of disposition. See, e.g., 27 CFR 
555.124(c)(1).
    In the event of an ATF investigation of lost or stolen explosives, 
ATF has the statutory right to examine the permanent records of Federal 
explosives licensees and permittees without a warrant under 18 U.S.C. 
843(f). Requiring distributors to record the full name of the driver 
and the name of the common or contract carrier in their permanent 
records will enable ATF to conduct a trace of explosive materials 
quickly and efficiently. Therefore, eliminating the Form 5400.8 will 
decrease the burden on distributors and common and contract carriers, 
yet the additional information required by that form still will be 
collected.

Discussion of This Interim Final Rule

    This interim final rule removes the procedures set forth in 27 CFR 
555.103(b)(3) and 555.105(b)(6)(iii) and (iv), which require 
transactions among licensees, user permittees, and limited permittees, 
on and after May 24, 2003, involving delivery of explosive materials by 
a common or contract carrier, to utilize the ATF Form 5400.8, 
Explosives Delivery Record. Specifically, this interim final rule 
removes the procedures related to the use of Form 5400.8, thereby 
removing any requirement to use the form in any and all explosives 
transactions on and after May 24, 2003. This interim final rule 
requires that distributors of explosive materials verify the identity 
of the person accepting possession for the common or contract carrier 
by examining such person's valid unexpired driver's license issued by 
any State, Canada, or Mexico. In addition, distributors must record in 
the permanent records they are required to keep pursuant to 27 CFR 
555.121 the name of the common or contract carrier and the full name of 
the driver. This rule also provides related clarification to Sec.  
555.103(b)(2)(ii).
    This rule does not revise provisions related to the required use of 
ATF Form 5400.8 as described in 27 CFR 555.103(a)(1)(iv) (addressing 
use of the form in transactions among licensees and permittees prior to 
May 24, 2003) and in 27 CFR 555.105(a)(6) (addressing use of the form 
in distributions to nonlicensees and nonpermittees prior to May 24, 
2003). The reasons for this are as follows:
    (1) As ATF has explained in its internet postings, immediately 
after January 24, 2003, ATF suspended until further notice mandatory 
use of the revised ATF Form 5400.8, Explosives Delivery Record. ATF's 
internet posting required that, until May 24, 2003, the old form (in 
use since 1998) continue to be used in transactions as described on the 
form. See http://www.atf.gov/forms/pdfs/f54008old.pdf (ATF F 5400.8 (7-
98)).
    (2) On and after May 24, 2003, the new ATF Form 5400.8 was required 
to be used in transactions as described herein. See http://www.atf.gov/forms/pdfs/f54008may2003.pdf (ATF Form 5400.8, Revised May 2003).
    (3) Upon the publication date of this rule, the form is not 
required in any transaction whatsoever.
    Licensees and permittees who have completed ATF Forms 5400.8 prior 
to the effective date of this interim final rule should continue to 
maintain them as part of their permanent records in accordance with 
section 555.121.

How This Document Complies With the Federal Administrative Requirements 
for Rulemaking

A. Executive Order 12866

    The Department of Justice, Bureau of Alcohol, Tobacco, Firearms and 
Explosives has determined that this rule is not a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review. Therefore, a Regulatory Assessment is 
not required. Accordingly, this rule has not been reviewed by the 
Office of Management and Budget.

B. Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, the Attorney General has determined that this 
regulation does not have sufficient federalism implications to warrant 
the preparation of a federalism summary impact statement.

C. Executive Order 12988: Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

D. Administrative Procedure Act (APA)

    Because this rule eliminates the use of a particular form while 
maintaining the

[[Page 53512]]

requirement that most of the information covered by the form be 
collected and retained elsewhere, its only effect is to lessen a small 
administrative burden. Therefore, the Attorney General has found it to 
be unnecessary and contrary to the public interest to provide notice 
and seek prior public comment regarding this rule. See 5 U.S.C. 553(b)-
(c). Furthermore, because this rule merely constitutes relief from a 
restriction on certain transactions, it is not subject to the delayed-
effective-date provision of the APA. See 5 U.S.C. 553(d)(1).

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (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 head of the 
agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. Small entities 
include small businesses, small not-for-profit enterprises, and small 
governmental jurisdictions. The Attorney General has reviewed this 
regulation and, by approving it, certifies that this rule will not have 
a significant economic impact on a substantial number of small 
entities. Although it removes a requirement that a government form be 
prepared and submitted, most of this information still must be recorded 
in the distributor's permanent records.

F. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 
804). This rule will not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets. A copy of this interim rule, however, has been provided 
to the Small Business Administration for its review.

G. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

H. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Pub. L. 104-13, all 
Departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any reporting requirements 
inherent in a final/interim rule. The collections of information in 
this regulation have been approved by OMB under control numbers 1140-
0079 and 1140-0075. 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 OMB. The collections of 
information in this regulation are in 27 CFR 555.103 and 555.105. This 
rule decreases existing recordkeeping requirements for distributors of 
explosive materials and common and contract carriers by abolishing the 
use of ATF Form 5400.8, by limiting the information that distributors 
are required to record to the name of the common or contract carrier 
and the full name of the driver, and by allowing distributors to record 
such information in their permanent records rather than on a separate 
ATF form.

Public Participation

    ATF is requesting comments on the interim regulations from all 
interested persons. ATF is also specifically requesting comments on the 
clarity of this interim rule and how it could 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.
    You may submit written comments by facsimile transmission to (202) 
927-0506. Facsimile comments must:
    [sbull] Be legible;
    [sbull] Include your mailing address;
    [sbull] Reference this document 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.
    ATF will not acknowledge receipt of facsimile transmissions. ATF 
will treat facsimile transmissions as originals.
    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.

Disclosure

    Copies of this interim rule 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 20226, telephone (202) 927-7890.

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.

Drafting Information

    The author of this document is James P. Ficaretta; Firearms, 
Explosives and Arson; Bureau of Alcohol, Tobacco, Firearms and 
Explosives.

List of Subjects in 27 CFR Part 555

    Administrative practice and procedure, Authority delegations, 
Customs duties and inspection, Explosives, Hazardous materials, 
Imports, Penalties, Reporting and recordkeeping requirements, Safety, 
Security measures, Seizures and forfeitures, Transportation, and 
Warehouses.

Authority and Issuance

0
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. Section 555.103 is amended by revising the last sentence in 
paragraph (b)(2)(ii) and by revising paragraph (b)(3) to read as 
follows:

[[Page 53513]]

Sec.  555.103  Transactions among licensees/permittees and transactions 
among licensees and holders of user permits.

* * * * *
    (b) * * *
    (2) * * *
    (ii) * * * Except as provided in paragraph (b)(3) of this section, 
in all instances the distributor must verify the identity of the 
distributee, or the employee of the distributee accepting possession of 
explosive materials on behalf of the distributee, by examining an 
identification document (as defined in Sec.  555.11) before 
relinquishing possession.
* * * * *
    (3) Delivery of explosive materials by common or contract carrier. 
When a common or contract carrier will transport explosive materials 
from a distributor to a distributee who is a licensee or holder of a 
user permit, the distributor must take the following actions before 
relinquishing possession of the explosive materials:
    (i) Verify the identity of the person accepting possession for the 
common or contract carrier by examining such person's valid, unexpired 
driver's license issued by any State, Canada, or Mexico; and
    (ii) Record the name of the common or contract carrier (i.e., the 
name of the driver's employer) and the full name of the driver. This 
information must be maintained in the distributor's permanent records 
in accordance with Sec.  555.121.
* * * * *


0
3. Section 555.105 is amended by revising paragraphs (b)(6)(iii) and 
(b)(6)(iv) to read as follows:


Sec.  555.105  Distributions to nonlicensees, nonpermittees, and 
limited permittees.

* * * * *
    (b) * * *
    (6) * * *
    (iii) Delivery by common or contract carrier hired by the 
distributor. Where a common or contract carrier hired by the 
distributor will transport explosive materials from the distributor to 
a holder of a limited permit:
    (A) The limited permittee must, prior to delivery of the explosive 
materials, complete the appropriate section on Form 5400.4, affix to 
the Form 5400.4 one of the six IPECs he has been issued, and provide 
the form to the distributor in person or by mail.
    (B) The distributor must, before relinquishing possession of the 
explosive materials to the common or contract carrier:
    (1) Verify the identity of the person accepting possession for the 
common or contract carrier by examining such person's valid, unexpired 
driver's license issued by any State, Canada, or Mexico; and
    (2) Record the name of the common or contract carrier (i.e., the 
name of the driver's employer) and the full name of the driver. This 
information must be maintained in the distributor's permanent records 
in accordance with Sec.  555.121.
    (C) At the time of delivery of the explosive materials, the common 
or contract carrier, as agent for the distributor, must verify the 
identity of the person accepting delivery on behalf of the distributee, 
note the type and number of the identification document (as defined in 
Sec.  555.11) and provide this information to the distributor. The 
distributor must enter this information in the appropriate section on 
Form 5400.4.
    (iv) Delivery by common or contract carrier hired by the 
distributee. Where a common or contract carrier hired by the 
distributee will transport explosive materials from the distributor to 
a holder of a limited permit:
    (A) The limited permittee must, prior to delivery of the explosive 
materials, complete the appropriate section on Form 5400.4, affix to 
the Form 5400.4 one of the six IPECs he has been issued, and provide 
the form to the distributor in person or by mail.
    (B) Before the delivery at the distributor's premises to the common 
or contract carrier who will transport explosive materials to the 
holder of a limited permit, the distributor must:
    (1) Verify the identity of the person accepting possession for the 
common or contract carrier by examining such person's valid, unexpired 
driver's license issued by any State, Canada, or Mexico; and
    (2) Record the name of the common or contract carrier (i.e., the 
name of the driver's employer) and the full name of the driver. This 
information must be maintained in the distributor's permanent records 
in accordance with Sec.  555.121.
* * * * *

    Dated: September 5, 2003.
John Ashcroft,
Attorney General.
[FR Doc. 03-23093 Filed 9-10-03; 8:45 am]
BILLING CODE 4410-FY-P