X. ADMINISTRATIVE

A. This agreement creates no private right of action against the Federal government.
This agreement creates no rights in any third parties.

B. This agreement is subject to the availability of funds. This agreement will not be
construed as obligating funds. Any work that requires the expending or obligating of
funds will be accomplished through a separate agreement. Nothing in this agreement
obligates MSHA or ATF to expend appropriations or enter into any contract or other
obligations.

C. Nothing in this agreement shall be interpreted as limiting, superseding, or otherwise
affecting MSHA’s or ATF’s normal operations or decisions in carrying out their
statutory or regulatory duties. This agreement does not limit or restrict the agencies
from participating in similar activities or arrangements with other entities. This
agreement also does not limit or restrict the agencies from taking any other action
necessary.

XI. PERIOD OF PERFORMANCE

This MOU will be fully executed upon the signature of both agencies and will
supersede the MOU of April 9, 1980. This MOU shall continue in effect unless modified
in writing by mutual consent of both parties. Any modification or amendments to this
agreement must be signed by both parties. A party may terminate its participation
under this agreement upon at least 30 days written notice to the other party.

XII. INFORMATION COORDINATION

Disclosure of information regarding activities conducted under this MOU will be
subject to the Freedom of Information Act (5 U.S.C. § 552) and the Privacy Act of 1974 (5
U.S.C. § 552a, as amended). Prior to disclosure of requested information involving the
other party, the agencies will consult regarding any such proposed disclosure.

XIII. CRIMINAL INVESTIGATIONS

This MOU is not intended to, and does not affect or govern any federal criminal
investigation. In the event that the potential exists for a criminal case related to an
inspection, MSHA and ATF will coordinate with each other on a case-by-case basis.



D. The MSHA Coordinators will furnish the ATF Coordinator a copy of accident
investigation reports (including reports furnished by mine operators) relating to
accidental detonations of explosives. ATF will furnish to MSHA a copy of ATF accident
investigation reports relating to accidental detonations at mining operations.

VI. WORKING AGREEMENTS

The ATF Coordinator, coordinating with the appropriate MSHA Coordinator, may
prepare written working or implementing guidelines and procedures for ATF Industry
Operations Investigators and MSHA inspectors, relating to inspections of Federal
explosives licensees and permittees who are also subject to MSHA's jurisdiction.

VII. MSHA INSPECTIONS

Consistent with its authority under the Mine Act, MSHA will inspect or investigate
underground explosives storage at mines. MSHA will inform the mine operator of
violations observed of ATF regulations at 27 CFR part 555, subpart K, Storage. MSHA
will document these violations on ATF Form 5030.5, Report of Violations, and, within
10 days of inspection completion, send the form to ATF by e-mail to MSHA@ATE.GOV
and a copy of the form to the mine operator. Once received, the Explosives Industry
Programs Branch will evaluate and forward the ATF Form 5030.5 to the appropriate
ATF field office for further review. In the event that further action is necessary
regarding the ATF violation, ATF will take such action with the assistance of MSHA,
when requested or needed, consistent with their respective authorities.

VIII. ATF INSPECTIONS

ATF will conduct inspections of applicants for Federal explosives licenses and permits
and of current Federal explosives licensees and permittees as authorized and required
by 18 U.S.C. Chapter 40. ATF will use a referral of information to document any
adverse results of inspections of sites subject to MSHA’s jurisdiction and promptly
transmit it through normal field office review procedures to the ATF Coordinator at
MSHA@ATE.GOV. The ATF Coordinator will timely disseminate this information to the
MSHA Coordinators or their assigned designees.

Ix. ACCIDENT NOTIFICATION

The applicable MSHA District Office or ATF field office will promptly notify the other
applicable MSHA or ATF office of any accident or incident relevant to a site in their
respective jurisdictions involving theft, possible sabotage, terrorist activity, or
suspicious or criminal activities involving explosive materials.



XIV. POINTS OF CONTACT

Bureau of Alcohol, Tobacco, Firearms and Explosives; Chief, Explosives Industry
Programs Branch, (202) 648-7120. Mine Safety and Health Administration; Chief, Metal
and Nonmetal Safety Division, (202) 693-9600; or Chief, Coal Safety Division, (202) 693-

9500.

XV. SIGNATURES

chante Bo Zl TINE 2M, 016
Date Date
ae Woon — nue Fs he rade
sistant Secretary Deputy Director
ine Safety and Health Administration Bureau of Alcohol, Tobacco,
Department of Labor Firearms and Explosives,

Department of Justice



MEMORANDUM of UNDERSTANDING
between
DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms and Explosives
and the
DEPARTMENT OF LABOR
Mine Safety and Health Administration

I. INTRODUCTION

The Mine Safety and Health Administration (MSHA) and the Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF) have signed a revised Memorandum of
Understanding (MOU) to update their coordinated efforts in the enforcement of Federal
explosives laws at mines under each agency’s respective jurisdiction. The MOU sets
forth the policy and procedures for cooperation and coordination between the two
agencies to ensure effective compliance with Federal explosives laws.

Il. PURPOSE

A. On April 9, 1980, the MSHA, Department of Labor, and the ATE, Department of the
Treasury, entered into a MOU. This MOU replaced a June 1, 1971, MOU entered into
by MSHA’s predecessor, the Mining Enforcement and Safety Administration,
Department of the Interior, and ATF, formerly the Alcohol, Tobacco and Firearms
Division of the Internal Revenue Service. The MOU provided for MSHA inspections of
explosives storage facilities at mines under MSHA jurisdiction involving holders of
licenses and permits under 18 U.S.C. Chapter 40, and implementing regulations issued
in 27 CFR part 181 (which became part 55), and for MSHA to conduct compliance
inspections in regard to ATF storage and recordkeeping requirements. Enforcement of
MSHA and ATF explosives requirements ensures that miners and the general public are
protected from explosives incidents and that the explosives are traceable and secured
from unauthorized persons.

B. The Homeland Security Act of 2002, Pub. L. 107-296, transferred most of ATF from
the Department of the Treasury to the Department of Justice (DOJ). As a result of this
transfer, the regulations at 27 CFR part 55 were recodified at 27 CFR part 555. The
purpose of the revised MOU is to acknowledge the transfer of ATF to DOJ, to update
the existing policies and procedures, and to coordinate the regulation of explosives
under the agencies’ overlapping jurisdictions.

C. Itis in the best interests of the Government and the public that inspections of mines
to determine compliance with explosives laws be conducted in the most efficient and
effective manner possible, with minimum duplication of effort and activities while
maintaining high levels of worker and public safety.



III. GENERAL AUTHORITIES

A. Under Title XI (Regulation of Explosives) of the Organized Crime Control Act of
1970, Pub. L. 91-452, as amended, 18 U.S.C. Chapter 40, protecting explosives commerce
by reducing hazards to the public and property from unsafe and insecure storage of
explosives, ATF is responsible for:
(1) Issuing Federal explosives licenses to persons engaged in the business of
importing, manufacturing, and dealing in explosive materials;
(2) Issuing Federal explosives permits to persons who transport, ship, cause to
be transported, or receive explosive materials;
(3) Conducting background checks of responsible persons and employee
possessors of Federal explosives licensees and permittees;
(4) Establishing standards for the storage of explosive materials; and
(5) Inspecting storage facilities and required records of Federal explosives
licensees and permittees.

B. Under the Federal Mine Safety and Health Act of 1977 (Mine Act), Pub. L. 95-164, as
amended, 30 U.S.C. § 801 et seq., MSHA is responsible for promulgating and enforcing
safety and health standards for explosive materials storage, use, and transportation at
mines to protect the health and safety of the miner.

C. MSHA and ATF have overlapping jurisdiction to inspect explosives storage facilities
and magazines in mines. Each agency determines whether violations of its laws,
standards or regulations have occurred and, if so, what corrections are required for
compliance.

IV. STANDARDS

A. During its inspections of mines, MSHA determines a mine’s compliance with the
Mine Act and applicable MSHA standards and regulations.

B. MSHA standards at part 57, subpart E, and part 75, subpart N govern the
transportation, storage, and use of explosive materials taken underground for mining
and related activities. ATF requirements in 27 CFR part 555, subpart K, Storage, govern
the storage of explosive materials and construction of storage facilities. In the event that
ATF has concerns with the underground storage of explosives at a mine, the agencies
will determine an appropriate course of action to resolve those concerns. These
concerns should be initiated at the division or district level. Among the possible
courses of action are reviews of the security concerns at issue or an evaluation for
alternate procedures by ATF. In the event that ATF and MSHA underground storage
standards differ and the agencies decide that MSHA’s requirement sufficiently

2.



addresses safety and security concerns, the mine operator should submit a request to
ATF for alternate methods or procedures pursuant to 27 CFR 555.22. ATF may approve
the use of an alternate method or procedure in lieu of a method or procedure
specifically prescribed in Part 555 when: (1) Good cause is shown for the use of the
alternate method or procedure; (2) The alternate method or procedure is within the
purpose of, and is consistent with the effect intended by, the specifically prescribed
method or procedure, and the alternate method or procedure is substantially equivalent
to that specifically prescribed method or procedure; and (3) The alternate method or
procedure is not contrary to correct any provision of law and will not result in an
increase in cost to the Government or hinder the effective administration of Part 555.

V. INTERAGENCY COORDINATION

A. ATF Chief, Explosives Industry Programs Branch (ATF Coordinator) and the MSHA
Chief, Division of Safety, Metal and Nonmetal Mine Safety and Health, and MSHA
Chief, Division of Safety, Coal Mine Safety and Health (MSHA Coordinators) shall
serve as liaison points to facilitate communication and cooperation between the two
agencies. These individuals will communicate at determined intervals and at the
request of either agency.

B. Through their respective Coordinators, each agency will:

(1) Consult in any development of explosives storage standards for the purpose
of promoting regulatory consistency where possible. Each agency will
provide notice to the other of all rulemaking activities concerning explosives.

(2) Assist the other as necessary, consistent with their respective authorities, with
regard to other situations involving explosive materials. Each agency may
request assistance from the other on an as-needed basis.

(3) Provide training at the other agency’s request. MSHA will provide training
on MSHA jurisdiction, inspection authority, and an overview of mining
operations and its explosives standards and regulations. ATF will provide
training on ATF jurisdiction, inspection authority, and an overview of its
explosives regulations to include explosives classification and storage
requirements. ATF and MSHA field offices are encouraged to participate in
local, joint training efforts organized by the respective agency Coordinators.

C. Upon an MSHA Coordinator's request, the ATF Coordinator will furnish to the
MSHA Coordinators a list of ATF division offices, also available on the ATF public
website, www.ATF.gov. When possible, the ATF Coordinator will furnish to the
MSHA Coordinators, via e-mail, copies of rulings and variances issued to mines under
MSHA jurisdiction. The MSHA Coordinators will provide the ATF Coordinator an
annual updated list of District Office locations and telephone numbers.