Federal Register / Vol. 75, No. 22 / Wednesday, February 3, 2010 / Proposed Rules 5545 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1910 

[Docket No. OSHA–2007–0032 (formerly 

Docket Nos. OSHA–S031–2006–0665 and 

OSHA–S–031)] 

RIN 1218–AC09 

Explosives 

AGENCY: Occupational Safety and Health 

Administration (OSHA); Labor. 

ACTION: Proposed rule; termination. 

SUMMARY: In this notice, OSHA is 

terminating the rulemaking to amend its 

Explosives and Blasting Agents 

Standard at 29 CFR 1910.109. OSHA is 

taking this action because it has limited 

rulemaking resources, which are 

currently devoted to higher priority 

projects that will affect a more 

significant improvement in worker 

safety and health than would this 

rulemaking. 

DATES: The effective date for terminating 

the rulemaking is February 3, 2010. 

FOR FURTHER INFORMATION CONTACT: 

General information and press inquiries: 

Contact Ms. Jennifer Ashley, Office of 

Communications, Room N–3647, OSHA, 

U.S. Department of Labor, 200 

Constitution Avenue, NW., Washington, 

DC 20210; telephone (202) 693–1999. 

Technical inquiries: Contact Mr. Mark 

Hagemann, Office of Safety Standards, 

Directorate of Standards and Guidance, 

Room N–3609, OSHA, U.S. Department 

of Labor, 200 Constitution Avenue, 

NW., Washington, DC 20210; telephone: 

(202) 693–2255; fax: (202) 693–1663. 

Copies of this Federal Register notice. 

Electronic copies of this Federal 

Register notice are available at http:// 

www.regulations.gov. This Federal 

Register notice, as well as news releases 

and other relevant information, are also 

available at OSHA’s Web page at http:// 

www.osha.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

In 1970, Congress enacted the 

Occupational Safety and Health Act (29 

U.S.C. 651 et seq.) (the Act) directing 

OSHA to promulgate safety and health 

standards to assure, as far as possible, 

safe and healthful working conditions 

for every employee in the Nation. To 

expedite OSHA’s mission, Congress 

directed the Secretary of Labor, through 

Section 6(a) of the Act (29 U.S.C. 

655(a)), to promulgate safety and health 

standards within the first two years of 

the Act’s enactment by summarily 

adopting existing national consensus 

and established Federal standards, 

without requiring the Agency to use the 

rulemaking procedures detailed in 

Section 6(b) of the Act, 29 U.S.C. 655(b). 

On May 29, 1971, pursuant to Section 

6(a) of the Act, OSHA promulgated its 

Explosives and Blasting Agents 

Standard at 29 CFR 1910.109 (36 FR 

10553–10562). OSHA based the 

standard on two national consensus 

standards promulgated by the National 

Fire Protection Association (NFPA)— 

NFPA 495–1970, Code for the 

Manufacture, Transportation, Storage, 

and Use of Explosives and Blasting 

Agents, and NFPA 490–1970, Code for 

the Storage of Ammonium Nitrate. 

OSHA subsequently made several minor 

revisions to the standard (37 FR 6577, 

57 FR 6356, and 63 FR 33450). 

On July 29, 2002, the Institute of 

Makers of Explosives and the Sporting 

Arms and Ammunition Manufacturers’ 

Institute petitioned OSHA to revise the 

standard, and, on April 13, 2007, OSHA 

published a Federal Register notice 

proposing a revision (72 FR 18792). On 

July 17, 2007, however, OSHA closed 

the comment period, stating that it 

needed to clarify the intent of the 

rulemaking, and that it planned to issue 

a new proposal at a later date (72 FR 

39041). 

II. Rationale for Terminating the 

Rulemaking 

Continuing this rulemaking would 

have a limited safety and health benefit, 

while diverting OSHA resources from 

regulatory projects with a much more 

substantial hazard reduction potential. 

A. Lack of Major Protective Benefits 

Afforded by Proposed Standard 

The proposed rule would not result in 

a major safety or health improvement 

for workers. First, other Federal 

agencies already regulate explosives 

hazards in many situations; second, 

even in the areas subject to OSHA 

regulation, the proposal had a very 

limited scope; and finally, the proposal 

would not have amended many of the 

substantive requirements of OSHA’s 

existing explosives standard. 

1. Pursuant to Section 4(b)(1) of the 

OSH Act, 29 U.S.C. 653(b)(1), in most 

situations the Act does not apply where 

another Federal agency exercises 

‘‘statutory authority to prescribe or 

enforce standards or regulations 

affecting occupational safety or health.’’ 

As described below, a number of 

Federal agencies other than OSHA 

exercise broad authority over explosives 

safety. Moreover, even with respect to 

industries regulated by OSHA, the 

proposed standard would affect only a 

small proportion of exposure to 

explosives hazards in general industry. 

A significant amount of explosives 

use occurs in the mining industry. 

Pursuant to the Federal Mine Safety and 

Health Act of 1977 (30 U.S.C. 801 et 

seq.), the Mine Safety and Health 

Administration is responsible for 

regulating the transportation, storage, 

and use of explosives at mining 

facilities. Its relevant standards are 30 

CFR 56.6000 to 56.6905, 57.6000 to 

57.6960, 75.1300 to 75.1328, and 

77.1300 to 77.1304. Mining-related 

standards issued by the Department of 

the Interior’s Office of Surface Mining 

regulate blast effects, such as flyrock 

and ground vibration, near surface 

mines (30 CFR 816, 817, and 850). 

Other explosives hazards occur when 

explosives are being transported and 

stored. The Department of 

Transportation (DOT), under the 

Hazardous Materials Transportation Act 

(49 U.S.C. 5101 et seq.), is responsible 

for regulating the safe transportation of 

explosives in intrastate, interstate, and 

foreign commerce. Although not all 

DOT regulations preempt OSHA 

standards, DOT’s rules address hazards 

related to the movement of explosives in 

commerce, as well as the loading, 

unloading, and storage of explosives 

incidental to that movement (49 CFR 

parts 171 to 180 and 397). The Bureau 

of Alcohol, Tobacco, Firearms and 

Explosives (ATF) regulates the import, 

manufacture, distribution, and storage 

of explosives (27 CFR part 555). ATF 

rules require manufacturers, importers, 

and dealers in explosives to obtain a 

Federal license from ATF, and require 

some users of explosives to obtain a 

Federal permit. ATF also regulates the 

safe and secure storage of explosives at 

approved facilities. 

Several other Federal agencies also 

regulate explosives. In maritime 

settings, the United States Coast Guard 

regulates loading, unloading, 

transporting, and stowing explosives on 

vessels and at related land-side facilities 

(33 CFR part 126; 46 CFR part 194; and 

49 CFR parts 171 to 173 and 176). The 

Consumer Product Safety Commission 

regulates consumer fireworks as part of 

its mission to protect the public from 

unreasonable risks of serious injury or 

death from consumer products. (16 CFR 

parts 1500 and 1507.) Its regulations 

contain construction, performance, and 

labeling requirements for consumer 

fireworks. The Environmental 

Protection Agency, under such statutes 

as the Resource Conservation and 

Recovery Act (42 U.S.C. 6901 et seq.), 

the Clean Water Act (33 U.S.C. 1251 et 

seq.), and the Clean Air Act (42 U.S.C. 

7401 et seq.), regulates releases and 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS

5546 Federal Register / Vol. 75, No. 22 / Wednesday, February 3, 2010 / Proposed Rules 

1For instance, by adopting the ATF system to 

classify explosives storage magazines, or by 

following the example of DOT, which adopted the 

United Nations Globally Harmonized System of 

Classification and Labeling of Chemicals to classify 

explosives. This rulemaking goal is actively being 

addressed, as OSHA recently issued a proposal to 

conform its Hazard Communication Standard, 29 

CFR 1910.1200, to the GHS. (74 FR 50280.) This 

proposal generally adopts the GHS’s requirements 

for classifying, labeling, and providing safety data 

sheets for explosives. 

wastes involved in the manufacture, 

use, and disposal of explosives. 

2. Even with respect to activities 

regulated by OSHA, the proposed rule 

had a limited scope. It would not have 

covered the sale or use of consumer and 

public display fireworks (72 FR 18799). 

OSHA’s construction standards at 29 

CFR 1926 subpart U cover the hazards 

associated with blasting in the 

construction and demolition industries. 

The general industry uses addressed by 

the proposal include blasting of rocks, 

slag pockets, and beaver dams, as well 

as blasting associated with metal 

hardening, stump removal, pond 

creation, and avalanche control, and 

various types of blasting used to create 

art sculptures. Compared to the use of 

explosives by the construction and 

demolition industries, these general 

industry uses do not require large 

amounts of explosives, and employers 

perform them relatively infrequently. 

Moreover, employers engaged in the 

manufacture of explosives (other than 

blasting agents) and pyrotechnics must 

already meet the requirements 

contained in OSHA’s Process Safety 

Management (PSM) Standard at 29 CFR 

1910.119, which covers working 

conditions during the manufacture of 

highly hazardous chemicals (29 CFR 

1910.109(k)). The PSM Standard 

addresses many of the hazards 

associated with the manufacture of 

explosives and pyrotechnics. 

3. Finally, OSHA did not propose 

substantive changes to many of the 

requirements in the existing standard. 

Whether or not the rulemaking 

continues, the existing protective 

provisions addressing hazards 

associated with storing explosives; 

transporting explosives; using 

explosives and blasting agents; packing, 

marking, and storing explosives at piers, 

railway stations, and cars or vessels; 

mixing, storing, and transporting 

blasting agents; mixing water gel 

explosives; storing ammonium nitrate; 

and storing small arms ammunition, 

small arms primers, and small arms 

propellants, will remain in effect. 

The limited scope of the rulemaking 

and the breadth of existing Federal 

protections necessarily constrained the 

relative safety benefits of the 

rulemaking, especially when compared 

with OSHA’s higher priority rulemaking 

activities. The Preliminary Economic 

and Regulatory Screening Analysis 

conducted by OSHA in conjunction 

with the proposed rule supports this 

conclusion (72 FR 18828). In this 

analysis, OSHA examined the extent to 

which the proposed rulemaking would 

reduce the number of deaths and 

injuries attributable to explosive 

accidents in general industry by 

reviewing its accident-investigation 

reports for the years 1992–2002. OSHA 

concluded that compliance with the 

new requirements of the amended 

standard might have prevented only one 

of the 39 documented explosives 

accidents. Therefore, the proposed 

standard would have had limited 

benefit for workers exposed to explosive 

hazards. 

B. Using Limited Resources Efficiently 

In light of these limited benefits, 

OSHA cannot justify allocating the 

substantial resources it would need to 

utilize in order to issue a new proposal, 

analyze comments submitted by the 

regulated community, conduct a 

hearing, and promulgate an amended 

standard. As noted above, the existing 

standard already addresses many of the 

hazards associated with explosives, and 

much of the proposal involved 

clarifying the terms and scope of that 

standard. The proposal would have: (1) 

Increased the clarity and focus of the 

standard by rewriting requirements in 

plain language, correcting internal 

inconsistencies and duplicative 

requirements, and removing references 

to public safety that are beyond OSHA’s 

regulatory authority; (2) increased 

harmonization with other Federal 

standards that regulate explosives; 1 and 

(3) addressed the scope of preemption 

by other Federal agencies (notably DOT 

and ATF) of OSHA authority over 

working conditions in the explosives 

industry. While these revisions could 

have reduced confusion among the 

regulated community regarding 

compliance and enforcement authority, 

they would have no substantive effect 

on the safety measures employers must 

take to control explosives hazards. 

By withdrawing this proposal, OSHA 

can devote the resources that would 

have been utilized in completing the 

rulemaking to deservedly higherpriority projects. For example, OSHA 

recently announced a rulemaking to 

reduce combustible dust hazards in 

general industry. Combustible dust 

explosions have resulted in more than 

130 deaths and 780 injuries since 1980. 

OSHA is also preparing to propose a 

standard governing occupational 

exposure to respirable silica. Inhalation 

of this substance, which is extremely 

widespread, causes lung disease, 

silicosis and lung cancer. Terminating 

the explosives rulemaking will free 

resources for these and other highimpact proceedings. 

C. Conclusion 

Based on the findings discussed in the 

preceding section, OSHA concludes that 

terminating the proposed rulemaking 

will not diminish worker protection 

because § 1910.109, along with other 

OSHA standards and the standards of 

other Federal agencies, provide workers 

with substantial protection from 

explosive hazards. In addition, 

alternatives exist to increase the 

protection afforded by, and to improve 

the clarity of the standard. Therefore, 

terminating the proposed rulemaking 

will enable OSHA to devote its limited 

resources to other rulemakings that will 

provide greater protection to workers 

from occupational hazards than would 

the proposed rulemaking. 

III. Authority and Signature 

David Michaels, PhD MPH, Assistant 

Secretary of Labor for Occupational 

Safety and Health, U.S. Department of 

Labor, 200 Constitution Avenue, NW., 

Washington, DC, 20210, directed the 

preparation of this notice. It is issued 

pursuant to Sections 4, 6, and 8 of the 

Occupational and Safety and Health Act 

of 1970 (29 U.S.C. 653, 655, 657), 

Secretary’s Order 5–2007 (72 FR 31160), 

and 29 CFR part 1911. 

Signed at Washington, DC, on January 29, 

2010. 

David Michaels, 

Assistant Secretary of Labor for Occupational 

Safety and Health. 

[FR Doc. 2010–2273 Filed 2–2–10; 8:45 am] 

BILLING CODE 4510–26–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 721 

[EPA–HQ–OPPT–2009–0686; FRL–8796–7] 

RIN 2070–AB27 

Proposed Significant New Use Rule for 

Multi-walled Carbon Nanotubes 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing a significant 

new use rule (SNUR) under section 

5(a)(2) of the Toxic Substances Control 

Act (TSCA) for the chemical substance 

identified generically as multi-walled 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS