[Federal Register: February 3, 2010 (Volume 75, Number 22)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket No. OSHA-2007-0032 (formerly Docket Nos. OSHA-S031-2006-0665
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
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://
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
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.
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.
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2010-2273 Filed 2-2-10; 8:45 am]
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