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[Federal Register: September 16, 2010 (Volume 75, Number 179)]
[Proposed Rules]               
[Page 56489-56491]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16se10-13]                         

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DEPARTMENT OF JUSTICE

Bureau of Alcohol, Tobacco, Firearms, and Explosives

27 CFR Part 555

[Docket No. ATF 26A]
RIN 1140-AA27

 
Separation Distances of Ammonium Nitrate and Blasting Agents From 
Explosives or Blasting Agents (2002R-226P)

AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), 
Department of Justice.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The Department of Justice (Department) intends to amend the 
regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives 
(ATF) to replace the regulations' reference to an outdated guidance 
document. Based upon a petition ATF received, the Department wishes to 
gather information and comments from the public and industry about 
possible replacements for this guidance document.

DATES: Written comments must be postmarked and electronic comments must 
be submitted on or before December 15, 2010. Commenters should be aware 
that the electronic Federal Docket Management System will not accept 
comments after Midnight Eastern Time on the last day of the comment 
period.

ADDRESSES: Send comments to any of the following addresses--
     Scott P. Armstrong-Cezar, Industry Operations Specialist, 
Room 6N-602, Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 
New York Avenue, NE., Washington, DC 20226; ATTN: ATF 26A. Written 
comments must appear in a minimum 12 point size of type (.17 inches), 
include the commenter's mailing address, be signed, and may be of any 
length.
     202-648-9741 (facsimile).
    http://www.regulations.gov. Federal eRulemaking portal; 
follow the instructions for submitting comments.
    You may also view an electronic version of this advance notice at  
http://www.regulations.gov.
    See the Public Participation section at the end of the 
SUPPLEMENTARY INFORMATION section for instructions and requirements for 
submitting comments.

FOR FURTHER INFORMATION CONTACT: Scott P. Armstrong-Cezar, Enforcement 
Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and 
Explosives, U.S. Department of Justice, 99 New York Avenue, NE., 
Washington, DC 20226; telephone: (202) 648-7119.

SUPPLEMENTARY INFORMATION: 

I. Background

    ATF is responsible for implementing title XI of the Organized Crime 
Control Act of 1970, 91 Public Law 452 (``Title XI''), which added 
chapter 40 (``Importation, Manufacture, Distribution and Storage of 
Explosive Materials'') to title 18 of the United States Code. One of 
the stated purposes of title XI is to reduce the ``hazard to persons 
and property arising from misuse and unsafe or insecure storage of 
explosive materials.'' Under section 847 of title 18, United States 
Code, the Attorney General ``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 555 
(``Commerce in Explosives'').
    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 followed by six explanatory notes. Note three (3) 
states that the distances specified in the table ``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)

[[Page 56490]]

is a voluntary, non-profit trade association of the fertilizer industry 
that currently has more than 175 members. See Member Companies, The 
Fertilizer Institute, http://tfi.org/about/company.cfm (last visited 
June 17, 2010). Members include importers, wholesalers, retailers, and 
others involved in the fertilizer industry. Id. Many of TFI's members 
handle and store ammonium nitrate fertilizer and may be affected by the 
regulations at section 555.220.
    The ``Definition and Test Procedures for Ammonium Nitrate 
Fertilizer'' guidance document was originally developed by the 
Agricultural Nitrogen Institute, a predecessor organization of TFI. See 
The Fertilizer Institute, Definition and Test Procedures for Ammonium 
Nitrate Fertilizer i (Aug. 1984), available at http://www.atf.gov/publications/download/hist/definition-and-test-procedures-for-ammonium-nitrate.pdf. As stated in the guidance document, in May of 1984 TFI 
assembled a task force of industry and government representatives and 
experts on the physical and chemical characteristics of ammonium 
nitrate fertilizer to review this publication and make any necessary 
changes. Id. Based on that review and the technical expertise and 
experience of the task force members, TFI published a revised edition 
of the guidance document, dated August 1984. Id. In the guidance 
document, ammonium nitrate fertilizer is defined 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.

II. The Fertilizer Institute Petition

    On March 19, 2002, TFI filed a petition with ATF requesting that 
the Federal explosives regulations at section 555.220 be amended to 
remove the reference to the ``Definition and Test Procedures for 
Ammonium Nitrate Fertilizer.'' TFI explained that the ``Definition and 
Test Procedures for Ammonium Nitrate Fertilizer'' is outdated because 
TFI last published the guidance document in 1984, TFI will not review 
or update it, and TFI cannot ensure that the procedures outlined in the 
guidance document are still valid. TFI recognizes that ATF may require 
an alternate method of determining the insensitivity of ammonium 
nitrate fertilizer and has 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 on the amount of combustible material included in the 
fertilizer. (See 49 CFR 172.101, 172.102, 173.127 and 173.140). Class 
5.1 ammonium nitrate fertilizer is defined as a uniform mixture 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 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) more than 70 percent but less 
than 90 percent ammonium nitrate with other inorganic materials, or 
more than 80 percent but less than 90 percent ammonium nitrate mixed 
with calcium carbonate and/or dolomite and/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. Class 9 ammonium 
nitrate fertilizer is defined as a uniform, 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 combustibles. 
See 49 CFR 172.101 and 172.102(c)(1) special provisions 150, 132 for 
more information. To determine whether a material falls within Class 5, 
Division 5.1, DOT requires regulated parties to conduct tests in 
accordance with the United Nations (UN) Manual of Tests and Criteria. 
See 49 CFR 173.127(a) for additional information.

III. Discussion

    ATF is requesting information from explosives industry members, 
trade associations, consumers, and all other interested parties to 
determine whether a replacement reference for TFI's ammonium nitrate 
guidance document is necessary and, if so, whether there are alternate 
methods available to determine the insensitivity of ammonium nitrate 
fertilizer.
    Although ATF is soliciting comments on the following specific 
questions, it is also requesting any relevant information on the 
subject.
    1. Should ATF adopt the Department of Transportation (DOT) 
regulations for classifying ammonium nitrate fertilizer in accordance 
with the UN Manual of Tests and Criteria? If not, are there existing 
reduced-sensitivity tests that could be used to replace TFI's 
definition and reduced-sensitivity test procedures? If so, have these 
test procedures demonstrated consistent, reproducible, and accurate 
results?
    2. What are manufacturers currently using to establish the 
sensitivity or reduced sensitivity of ammonium nitrate fertilizer or 
other oxidizing materials?
    3. If no current test procedures are found suitable, should ATF 
convene an explosives study group to create a viable reduced-
sensitivity test standard?
    4. Assuming ATF initiates a study, which organizations or 
individuals should be included in the study group or consulted prior to 
implementing a new test procedure?
    5. What criteria should be established to accurately characterize 
insensitive ammonium nitrate fertilizer or other oxidizing materials? 
Should testing results for each material be quantified in a specific 
unit of measure for evaluation against other materials?
    6. What test procedures should be included in a possible reduced-
sensitivity test of ammonium nitrate fertilizer and other oxidizing 
materials?
    7. Should a new reduced-sensitivity test be applied to test 
previously evaluated ammonium nitrate products?
    8. Who should be responsible for the reduced-sensitivity 
certification of ammonium nitrate fertilizer and other oxidizing 
materials? Should each company conduct self-certified testing or should 
the testing be overseen by government regulators or independent 
scientific laboratories applying mutually accepted standards and 
procedures under the guidance of government oversight and regulation?
    9. What would be the cost burden imposed on manufacturers required 
to implement their own testing program? What would be the industry cost 
burden associated with a government testing program?
    10. Should materials found to demonstrate reduced sensitivity have 
their own storage requirements? If so, what requirements would be 
sufficient to protect them?

[[Page 56491]]

How This Document Complies With the Federal Administrative Requirements 
for Rulemaking

    This action is an Advance Notice of Proposed Rulemaking (ANPRM). 
Because it is not a ``significant regulatory action'' within the 
meaning of Executive Order 12866, the Executive Order's requirement of 
cost-benefit assessment does not apply. ATF is publishing this ANPRM to 
seek information from the public about a replacement document for the 
``Definition and Test Procedures for Ammonium Nitrate Fertilizer.''
    Similarly, the requirements of section 603 of the Regulatory 
Flexibility Act do not apply to this action because, at this stage, it 
is an ANPRM and not a ``rule'' as defined in section 601 of the 
Regulatory Flexibility Act. Following review of the comments received 
in response to this ANPRM, if ATF promulgates a notice or notices of 
proposed rulemaking regarding this matter, ATF will conduct all 
analyses required by the Regulatory Flexibility Act, Executive Order 
12866, and any other statutes or Executive Orders relevant to those 
rules and in effect at the time of promulgation.

Public Participation

A. Comments Sought
    ATF is requesting comments on this advance notice of proposed 
rulemaking from all interested persons. ATF is also specifically 
requesting comments on the clarity of this advance notice and how it 
may be made easier to understand.
    All comments must reference this document docket number (ATF 26A), 
be legible, and include the commenter's name and mailing address. ATF 
will treat all comments as originals and it will not acknowledge 
receipt of comments.
    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.
B. Confidentiality
    Comments, whether submitted electronically or in paper format, will 
be made available for public viewing at ATF, and on the Internet as 
part of the eRulemaking initiative, and are subject to the Freedom of 
Information Act. Commenters who do not want their name or other 
personal identifying information posted on the Internet should submit 
their comment by mail or facsimile, along with a separate cover sheet 
that contains their personal identifying information. Both the cover 
sheet and comment must reference this docket number. Information 
contained in the cover sheet will not be posted on the Internet. Any 
personal identifying information that appears within the comment will 
be posted on the Internet and will not be redacted by ATF.
    Any material that the commenter considers to be inappropriate for 
disclosure to the public should not be included in the comment. Any 
person submitting a comment shall specifically designate that portion 
(if any) of his comment that contains material that is confidential 
under law (e.g., trade secrets, processes, etc.). Any portion of a 
comment that is confidential under law shall be set forth on pages 
separate from the balance of the comment and shall be prominently 
marked ``confidential'' at the top of each page. Confidential 
information will be included in the rulemaking record but will not be 
disclosed to the public. Any comments containing material that is not 
confidential under law may be disclosed to the public. In any event, 
the name of the person submitting a comment is not exempt from 
disclosure.
C. Submitting Comments
    Comments may be submitted in any of three ways:
     Mail: Send written comments to the address listed in the 
ADDRESSES section of this document. Written comments must appear in a 
minimum 12 point size of type (.17 inches), include the commenter's 
mailing address, be signed, and may be of any length.
     Facsimile: Submit comments by facsimile transmission to 
(202) 648-9741. Faxed comments must:
    (1) Be legible and appear in a minimum 12 point size of type (.17 
inches);
    (2) Be on 8\1/2\ x 11 paper;
    (3) Contain a legible, written signature; and
    (4) Be no more than five pages long. ATF will not accept faxed 
comments that exceed five pages.
     Federal eRulemaking Portal: Submit comments to ATF via the 
Federal eRulemaking portal by visiting http://www.regulations.gov and 
following the instructions for submitting comments.

Disclosure

    Copies of the petition, this advance 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) 648-7080.

Drafting Information

    The author of this document is Scott P. Armstrong-Cezar; 
Enforcement Programs and Services; 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

    This notice is issued under the authority of 18 U.S.C. 847.

    Approved: September 3, 2010.
Kenneth E. Melson,
Deputy Director.
[FR Doc. 2010-23042 Filed 9-15-10; 8:45 am]
BILLING CODE 4410-FY-P
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