Modernizing ATF Regulations for Commercial Explosives
The Organized Crime Control Act of 1970 was signed into law more than forty years ago, making the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) the primary regulator for the safe storage, import and sale of commercial explosives. The Safe Explosives Act of 2002, signed into law after September 11th, added additional requirements. However, it has been more than twenty years since a broad review of ATF regulations for commercial explosives has been conducted.
ATF recently announced the Federal Regulatory Modernization Project with the intent of reviewing current federal regulations for commercial explosives to ensure they are still applicable to today’s industry and business environment and update them wherever necessary. The effort is also intended to reduce unnecessary or overly burdensome rules that are no longer necessary due to increased safety and security measures already in place.
As part of the federal regulatory modernization project, IME has provided the following recommendations for ATF’s consideration:
Timely Background Checks and Clearances
All employees who possess, use, or otherwise handle commercial explosives are required to undergo background checks by the ATF. In some instances, the process can take up to six months, creating workflow disruptions in an already challenging labor market.
- Background checks for employees in the commercial explosives industry should be expedited through the FBI’s NICS database.
- Employee clearance records should be portable from company to company.
- Long-time employees should have access to a timely relief process should an issue be flagged when undergoing background check renewals.
- Currently, subcontractors, temporary workers, and interns who might be handling explosives cannot be vetted under a company’s explosives license. IME believes these workers should be background checked and cleared as Employee Possessors under a company’s federal explosives license.
Modernize Record-Keeping Requirements
IME believes it is important to have accountability of commercial explosives, and we believe modernized record-keeping requirements of inventory will enhance security and improve efficiency.
- ATF has issued allowances for electronic record-keeping for over a decade on a case-by-case basis. IME believes regulations should be updated to allow for flexibility when companies choose to implement electronic record-keeping of commercial explosives material.
- ATF should accept one set of records for each company rather than separate sets for activities related to import, export, dealing, and use of commercial explosives inventory. This would greatly improve efficiency while maintaining a high level of security of inventory.
Implement the Institute of Makers of Explosives Safety Analysis for Risk (IMESAFR)
The American Table of Distances (ATD) was developed by IME over a century ago to ensure public safety around the storage of commercial explosives. During this time, practices and new explosives have greatly improved safety. In 2004, IME worked with APT Research to develop IMESAFR, a quantitative risk assessment tool (QRA), to supplement the ATD. This software models risk scenarios to the workforce and the public from commercial explosives facilities and operations.
- IME recommends that ATF formally adopt IMESAFR as an additional option for businesses to reduce risk and further safeguard the workforce and the public.
DHS/ATF: Duplicative Regulation of Commercial Explosives
The Department of Homeland Security’s (DHS) Chemical Facility Anti-Terrorism Standards (CFATS) program aims to secure high-risk chemical facilities against terrorism by requiring them to assess and report security risks and vulnerabilities, develop security plans, and comply with security measures. However, these requirements are duplicative of existing commercial explosives regulations enforced by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), whose mission is, “preventing terrorism, reducing violent crime involving the criminal misuse of explosives, and protecting the public by enforcing laws and regulations”.
- Thefts of explosives have seen no significant reduction following CFATS implementation in 2007.
- A 2021 GAO report, entitled Chemical Security: Overlapping Programs Could Better Collaborate to Share Information and Identify Potential Security Gapsfound the majority of CFATS requirements for commercial explosives directly overlap with pre-existing ATF regulations.
- In a 2021 Advanced Notice of Proposed Rulemaking (ANPRM) entitled Removal of Certain Explosive Chemicals From the Chemical Facility Anti-Terrorism Standards DHS indicated “we believe that these regulations may be unnecessarily burdensome for facilities that are already subject to security regulations for the same chemicals by another Federal agency, ATF.” Unfortunately, this ANPRM has yet to be formalized into a rulemaking.
- While developing it’s Risk Management Plan regulations, the EPA issued a final rule removing Division 1.1 explosives from its list of regulated substances for accidental release prevention concluding that “. . . current [ATF and other] regulations and current and contemplated industry practices promote safety and accident prevention in storage, handling, transportation, and use of explosives, making them adequate for EPA's purposes.”
The commercial explosives industry has been effectively regulated by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) since implementation of the Safe Explosives Act of 1970. All available government data shows that there has been no significant reduction in thefts of commercial explosives since implementation of the CFATS program.
Commercial explosives should be removed from the CFATS program’s Appendix A: Chemicals of Interest list by amending the legislation to include the following language “The Secretary may not designate any explosive material subject to regulation by the Department of Justice under chapter 40 of title 18, United States Code, or by the Bureau of Alcohol, Tobacco, Firearms, and Explosives under part 555 of title 27, Code of Federal Regulations, as a chemical of interest under Appendix A to part 27 of title 6, Code of Federal Regulations, or any successor thereto”.