[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the reference to an outdated guidance document in an explanatory note 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, http://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