[Federal Register: February 3, 2010 (Volume 75, Number 22)][Proposed Rules]               [Page 5545-5546]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



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

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, 

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://


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 
    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 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.

    \1\ For 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.

    By withdrawing this proposal, OSHA can devote the resources that 
would have been utilized in completing the rulemaking to deservedly 
higher-priority 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 high-impact 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 Sec.  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 

    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]