14 October 1999
Source: http://www.access.gpo.gov/su_docs/aces/fr-cont.html
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[Federal Register: October 14, 1999 (Volume 64, Number 198)]
[Rules and Regulations]
[Page 55625-55629]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14oc99-4]
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DEPARTMENT OF THE TREASURY
Bureau of Alcohol, Tobacco and Firearms
27 CFR Parts 47 and 55
[T.D. ATF-419; Ref: T.D. ATF-387 and Notice No. 847]
RIN: 1512-AB63
Implementation of Public Law 104-132, the Antiterrorism and
Effective Death Penalty Act of 1996, Relating to the Marking of Plastic
Explosives for the Purpose of Detection (96R-029P)
AGENCY: Bureau of Alcohol, Tobacco and Firearms (ATF), Department of
the Treasury.
ACTION: Final rule, Treasury decision.
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SUMMARY: This final rule implements certain provisions of the
Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. 104-
132). These regulations implement the law by requiring detection agents
for plastic explosives. The final rule also authorizes the use of four
specific detection agents to mark plastic explosives and provides for
the designation of other detection agents.
DATES: This rule is effective December 13, 1999.
FOR FURTHER INFORMATION CONTACT: James P. Ficaretta, Regulations
Division, Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts
Avenue, NW., Washington, DC 20226 (202-927-8230).
SUPPLEMENTARY INFORMATION:
Background
Public Law 104-132, 110 Stat. 1214, the Antiterrorism and Effective
Death Penalty Act of 1996 (hereafter, ``the Act'') was enacted on April
24, 1996. Title VI of the Act, ``Implementation of Plastic Explosives
Convention,'' added new requirements to the Federal explosives laws in
18 U.S.C. Chapter 40. Section 607 of the Act states that, except as
otherwise provided, the amendments made by Title VI shall take effect 1
year after the date of enactment, i.e., on April
[[Page 55626]]
24, 1997. The stated purpose of Title VI is to fully implement the
Convention on the Marking of Plastic Explosives for the Purpose of
Detection, Done at Montreal on March 1, 1991 (hereafter, ``the
Convention'').
The Convention represents an important achievement in international
cooperation in response to the threat posed to the safety and security
of international civil aviation by virtually undetectable plastic
explosives in the hands of terrorists. Such explosives were used in the
tragic destruction of Pan Am flight 103 over Lockerbie, Scotland, in
December 1988, and UTA flight 772 in September 1989. In the aftermath
of these bombings, the international community moved to draft a
multilateral treaty to ensure that plastic explosives would thereafter
contain a chemical marking agent to render them detectable.
Temporary Rule
On February 25, 1997, ATF published in the Federal Register a
temporary rule implementing certain provisions of the Act (T.D. ATF-
387, 62 FR 8374). The new statutory provisions and the regulation
changes necessitated by the law are as follows:
(1) Definitions. Section 602 of the Act added three definitions to
section 841 of title 18, U.S.C. The term ``Convention on the Marking of
Plastic Explosives'' is defined in the law to mean the Convention on
the Marking of Plastic Explosives for the Purpose of Detection, Done at
Montreal on March 1, 1991.
The term ``detection agent'' is defined as any one of the following
substances when introduced into a plastic explosive or formulated in
such explosive as a part of the manufacturing process in such a manner
as to achieve homogeneous distribution in the finished explosive:
(1) Ethylene glycol dinitrate (EGDN),
C2H4(NO3)2, molecular
weight 152, when the minimum concentration in the finished explosive is
0.2 percent by mass;
(2) 2,3-Dimethyl-2,3-dinitrobutane (DMNB),
C6H12(NO2)2, molecular
weight 176, when the minimum concentration in the finished explosive is
0.1 percent by mass;
(3) Para-Mononitrotoluene (p-MNT),
C7H7NO2, molecular weight 137, when
the minimum concentration in the finished explosive is 0.5 percent by
mass;
(4) Ortho-Mononitrotoluene (o-MNT),
C7H7NO2, molecular weight 137, when
the minimum concentration in the finished explosive is 0.5 percent by
mass; and
(5) any other substance added by the Secretary of the Treasury by
regulation, after consultation with the Secretary of State and the
Secretary of Defense. Permitting the Secretary to designate detection
agents other than the four listed in the statute would facilitate the
use of other substances without the need for legislation. However, as
specified in the law, only those substances which have been added to
the table in part 2 of the Technical Annex to the Convention on the
Marking of Plastic Explosives may be designated as approved detection
agents. ATF would have no authority to issue a regulation adding to the
list of approved detection agents until the Technical Annex has been so
modified.
The last term added to section 841 of title 18, U.S.C., ``plastic
explosive,'' is defined as an explosive material in flexible or elastic
sheet form formulated with one or more high explosives which in their
pure form has a vapor pressure less than 10-4 Pa at a
temperature of 25 deg.C, is formulated with a binder material, and is
as a mixture malleable or flexible at normal room temperature. Pursuant
to part I of the Technical Annex to the Convention, high explosives
include, but are not restricted to, cyclotetramethylenetetranitramine
(HMX), pentaerythritol tetranitrate (PETN), and
cyclotrimethylenetrinitramine (RDX).
The above changes to regulations are prescribed in Sec. 55.180.
(2) Requirement of Detection Agents for Plastic Explosives. The Act
amended the Federal explosives laws in 18 U.S.C. Chapter 40 by adding
new subsections (l)-(o) to section 842. Section 842(l) makes it
unlawful for any person to manufacture any plastic explosive that does
not contain a detection agent.
Section 842(m) makes it unlawful for any person to import or bring
into the U.S. or export from the U.S. any plastic explosive that does
not contain a detection agent. The provisions of this section do not
apply to the importation or bringing into the U.S. or the exportation
from the U.S. of any plastic explosive that was imported or brought
into or manufactured in the U.S. prior to the date of enactment of the
Act by or on behalf of any agency of the U.S. performing military or
police functions (including any military reserve component) or by or on
behalf of the National Guard of any State, not later than 15 years
after the Convention enters into force with respect to the U.S.
Pursuant to Article XIII of the Convention, the Convention will enter
into force on the sixtieth day following the date of deposit of the
thirty-fifth instrument of ratification, acceptance, approval or
accession with the Depositary, i.e., the International Civil Aviation
Organization, provided that no fewer than five such States (nations)
have declared that they are producer States. (A ``producer State''
means any State in whose territory explosives are manufactured.) Should
thirty-five such instruments be deposited prior to the deposit of their
instruments by five producer States, the Convention will enter into
force on the sixtieth day following the date of deposit of the
instrument of ratification, acceptance, approval or accession of the
fifth producer State. For other States, the Convention will enter into
force sixty days following the date of deposit of their instruments of
ratification, acceptance, approval or accession.
Section 842(n) provides that it is unlawful for any person to ship,
transport, transfer, receive, or possess any plastic explosive that
does not contain a detection agent. Exceptions to the prohibitions are
provided for any plastic explosive that was imported or brought into,
or manufactured in the U.S. prior to the date of enactment of the Act
by any person during the period beginning on that date, i.e., April 24,
1996, and ending 3 years after that date, i.e., April 24, 1999.
Exceptions to the prohibitions are also provided for any plastic
explosive that was imported or brought into, or manufactured in the
U.S. prior to the date of enactment of the Act by or on behalf of any
agency of the U.S. performing a military or police function (including
any military reserve component) or by or on behalf of the National
Guard of any State, not later than 15 years after the date of entry
into force of the Convention on the marking of Plastic Explosives with
respect to the U.S.
The above changes to the regulations are prescribed in Sec. 55.180.
Section 842(o) provides that any person, other than an agency of
the U.S. (including any military reserve component) or the National
Guard of any State, possessing any plastic explosive on the date of
enactment, shall report to the Secretary within 120 days after the date
of enactment the quantity of such explosives possessed, the
manufacturer or importer, any marks of identification on such
explosives, and such other information as the Secretary may prescribe
by regulation. Regulations implementing this provision of the Act were
prescribed in T.D. ATF-382, published in the Federal Register on July
23, 1996 (61 FR 38084). However, T.D. ATF-387 made a technical
amendment to Sec. 55.181 to include the control number assigned by
[[Page 55627]]
the Office of Management and Budget (OMB).
(3) Criminal Sanctions. The Act amended section 844(a) of title 18,
U.S.C., by providing that any person who violates any of the provisions
of section 842(l)-(o) shall be fined under title 18, imprisoned for not
more than 10 years, or both. Changes to the regulations in Sec. 55.185
have been made to implement this provision of the law.
(4) Exceptions. The Act amended 18 U.S.C. 845(a) to provide that
the exemptions from the requirements of 18 U.S.C. Chapter 40 that apply
to governmental entities and other specified uses of explosives do not
apply to section 842(l)-(o). Changes to the regulations in
Sec. 55.141(a) have been made to implement this provision of the law.
The Act also made a technical amendment to 18 U.S.C. 845(a)(1) to
clarify the current exemption from the requirements of 18 U.S.C.
Chapter 40 for aspects of the transportation of explosives regulated by
the U.S. Department of Transportation. The amendment makes it clear
that the exemption applies only to those aspects of the transportation
related to safety. Changes to the regulations in Sec. 55.141(a)(1) have
been made to implement this change in the law.
The Act also amended section 845 of title 18, U.S.C., by adding a
new subsection (c). This amendment provides that it is an affirmative
defense against any proceeding involving section 842(l)-(o) of title
18, U.S.C., if the proponent proves by a preponderance of the evidence
that the plastic explosive--
(1) Consisted of a small amount of plastic explosive intended for
and utilized solely in lawful--
(a) Research, development, or testing of new or modified explosive
materials;
(b) Training in explosives detection or development or testing of
explosives detection equipment; or
(c) Forensic science purposes; or
(2) Was plastic explosive that, within 3 years after the date of
enactment of the Act, will be or is incorporated in a military device
within the territory of the U.S. and remains an integral part of such
military device, or is intended to be, or is incorporated in, and
remains an integral part of a military device that is intended to
become, or has become, the property of any agency of the U.S.
performing military or police functions (including any military reserve
component) or the National Guard of any State, wherever such device is
located.
As defined in the Act, the term ``military device'' includes, but
is not restricted to, shells, bombs, projectiles, mines, missiles,
rockets, shaped charges, grenades, perforators, and similar devices
lawfully manufactured exclusively for military or police purposes.
The affirmative defenses provided in the law could be asserted in a
criminal case, a judicial forfeiture case, or an administrative license
or permit denial or revocation.
Changes to the regulations in Sec. 55.182 have been made to
implement the provisions of section 845(c) of title 18, U.S.C.
(5) Seizure and Forfeiture of Plastic Explosives. The Act amended
section 596(c)(1) of the Tariff Act of 1930, 19 U.S.C. 1595a(c)(1), to
provide for the seizure or forfeiture of plastic explosive that does
not contain a detection agent that is introduced or attempted to be
introduced into the U.S. Changes to the regulations in Sec. 55.186 have
been made to implement this provision of the law.
Miscellaneous. In order to fully implement the provisions of the
Act, regulations are prescribed in Sec. 55.184 which authorize the
Director to request from licensed manufacturers and licensed importers
accurate and complete statements of process with regard to any plastic
explosive or any detection agent that is to be introduced into a
plastic explosive or formulated in such explosive. The regulations also
give ATF the authority to require samples of any plastic explosive or
detection agent from such licensees.
As stated in Article III of the Convention, ``[e]ach State Party
shall take the necessary and effective measures to prohibit and prevent
the movement into or out of its territory of unmarked [plastic]
explosives'' so as to prevent their diversion or use for purposes
inconsistent with the Convention. In order to comply with the
objectives of the Convention, regulations are prescribed in Sec. 55.183
which require persons filing Form 6 applications for importation of
plastic explosives on or after April 24, 1997, to attach to the
application a statement certifying that the plastic explosive to be
imported contains a detection agent or is a ``small amount'' to be used
for research, training, or testing purposes and is exempt from the
detection agent requirement.
Finally, the temporary rule made certain technical amendments and
conforming changes to the regulations in Part 55. For example,
Secs. 55.49, 55.52, and 55.55 were amended to remove the reference to
Sec. 55.182. Section 55.182, Classes of explosive materials, was
replaced by Sec. 55.202 pursuant to T.D. ATF-87 (August 7, 1981; 46 FR
40382).
Notice of Proposed Rulemaking--Analysis of Comments
On February 25, 1997, ATF also published a notice of proposed
rulemaking cross-referenced to the temporary regulations (Notice No.
847, 62 FR 8412). The comment period for Notice No. 847 closed on May
27, 1997.
ATF received four comments in response to Notice No. 847. One
commenter expressed support for the temporary regulations. The
remaining commenters raised several concerns with respect to the
temporary regulations. Three commenters contend that current owners of
unmarked plastic explosives should be ``grandfathered'' and allowed to
retain their existing stocks and use them up at their normal attrition
rate, beyond the 3-year period specified in the Act. To accomplish
this, however, legislative action would be necessary.
One commenter argues that State and local law enforcement agencies
should be exempt from the marking requirement. Such an exemption,
however, would also necessitate a statutory change.
Two commenters argue that the Government should purchase all
unmarked plastic explosives from current owners. ATF has no authority
to use appropriated funds to purchase unmarked plastic explosives.
These commenters also suggest that the Federal Government supply the
detection agent to all possessors of unmarked plastic explosives so
that they may come into compliance. As stated above, ATF has no
authority to use appropriated funds for this purpose.
The same commenters contend that a definition of the term ``small
quantity'' is needed for purposes of the Act. As noted, the law
provides that it is an affirmative defense against any proceeding
involving section 842(l)-(o) of Title 18, U.S.C., if the proponent
proves by a preponderance of the evidence that the plastic explosive
consisted of a small quantity intended for and utilized solely in
lawful--
(a) Research, development, or testing of new or modified explosive
materials;
(b) Training in explosives detection or development or testing of
explosives detection equipment; or
(c) Forensic science purposes.
One of the commenters states that he possesses ``a small quantity
(less than 170 pounds) of plastic explosives'' for research purposes.
However, he points out the following:
By manufactures [sic] standards, small quantity is referred to
as 500 lbs. or less, however, to detection personnel the term
``small quantity'' may mean 10 lbs. or less.
[[Page 55628]]
A company providing explosive training may term ``small quantity''
as between 500-2000 lbs. of plastic explosives.
The other commenter states that he possesses approximately 3,000
pounds of PBX for training purposes.
The above comments illustrate the difficulty in specifying a
particular amount of explosive that is appropriate for all possessors.
As indicated, the amount of explosives required for a particular type
of research may be far greater than the amount required for another
type of research. Accordingly, ATF believes that such determinations
should be made on a case-by-case basis after consideration of all
relevant facts. ATF emphasizes that the statute makes it clear that the
burden is on the possessor to prove that the quantity of unmarked
plastic explosives is a ``small amount'' possessed for one of the
exempt purposes.
Finally, one commenter suggests that an exemption be given to
individuals using unmarked plastic explosives for training purposes.
The commenter trains law enforcement, military, and civilian personnel
in explosives safety. As indicated above, one of the affirmative
defenses to any proceeding involving the plastic explosive provisions
of the law is for a small quantity of plastic explosive utilized solely
in training in explosive detection or development. There is no
exception for training in explosives safety. Such an exception would
require legislative action.
Miscellaneous--Final Rule
The Convention on the Marking of Plastic Explosives for the Purpose
of Detection, Done at Montreal on March 1, 1991, entered into force on
June 21, 1998. Thirty-eight countries have ratified, including 11
producing states. As noted, for the Convention to enter into force
internationally, 35 countries were required to ratify, 11 of which are
producing states. Section 55.180 of the final regulations is being
amended to incorporate the actual date that the Convention entered into
force.
Accordingly, the temporary regulations published in the Federal
Register on February 25, 1997 (T.D. ATF-387) are adopted as final upon
the effective date of this Treasury decision.
Executive Order 12866
It has been determined that this final rule is not a significant
regulatory action as defined in E.O. 12866, because the economic
effects flow directly from the underlying statute and not from this
final rule. Therefore, this final rule is not subject to the analysis
required by this Executive order.
Regulatory Flexibility Act
The provisions of the Regulatory Flexibility Act relating to an
initial and final regulatory flexibility analysis (5 U.S.C. 604) are
not applicable to this final rule because the agency was not required
to publish a notice of proposed rulemaking under 5 U.S.C. 553 or any
other law. Accordingly, a regulatory flexibility analysis is not
required.
Paperwork Reduction Act
The collection of information contained in this final regulation
has been reviewed and approved by the Office of Management and Budget
in accordance with the requirements of the Paperwork Reduction Act (44
U.S.C. 3507(d)) under control number 1512-0539. An agency may not
conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a valid control number
assigned by the Office of Management and Budget.
The collection of information in this regulation is in 27 CFR
55.184(a). This information is required to ensure compliance with the
provisions of Public Law 104-132. This information will be used to
ensure that plastic explosives contain a detection agent as required by
law. The collection of information is mandatory. The likely respondents
are individuals and businesses. The estimated average annual burden
associated with the collection of information in this regulation is 12
hours per respondent. Comments concerning the accuracy of this burden
estimate and suggestions for reducing this burden should be directed to
the Chief, Document Services Branch, Room 3110, Bureau of Alcohol,
Tobacco and Firearms, 650 Massachusetts Avenue, NW., Washington, DC
20226, and to the Office of Management and Budget, Attention: Desk
Officer for the Department of the Treasury, Bureau of Alcohol, Tobacco
and Firearms, Office of Information and Regulatory Affairs, Washington,
DC 20503.
Disclosure
Copies of the temporary rule, the notice of proposed rulemaking,
all written comments, and this final rule will be available for public
inspection during normal business hours at: ATF Public Reading Room,
Room 6480, 650 Massachusetts Avenue, NW., Washington, DC.
Drafting Information: The author of this document is James P.
Ficaretta, Regulations Division, Bureau of Alcohol, Tobacco and
Firearms.
List of Subjects
27 CFR Part 47
Administrative practice and procedure, Arms control, Arms and
munitions, Authority delegation, Chemicals, Customs duties and
inspection, Imports, Penalties, Reporting and recordkeeping
requirements, Scientific equipment, and Seizures and forfeitures.
27 CFR Part 55
Administrative practice and procedure, Authority delegations,
Customs duties and inspection, Explosives, Hazardous materials,
Imports, Penalties, Reporting and recordkeeping requirements, Safety,
Security measures, Seizures and forfeitures, Transportation, and
Warehouses.
Authority and Issuance
Accordingly, parts 47 and 55 are amended as follows:
Paragraph 1. The temporary rule published on February 25, 1997 (62
FR 8374) is adopted as final with the following changes.
PART 55--COMMERCE IN EXPLOSIVES
Par. 2. The authority citation for 27 CFR part 55 continues to read
as follows:
Authority: 18 U.S.C. 847.
Par. 3. Section 55.180 is amended by revising paragraphs (b),
(c)(2), and (d)(2) to read as follows:
Sec. 55.180 Prohibitions relating to unmarked plastic explosives.
* * * * *
(b) No person shall import or bring into the United States, or
export from the United States, any plastic explosive that does not
contain a detection agent. This paragraph does not apply to the
importation or bringing into the United States, or the exportation from
the United States, of any plastic explosive that was imported or
brought into, or manufactured in the United States prior to April 24,
1996, by or on behalf of any agency of the United States performing
military or police functions (including any military reserve component)
or by or on behalf of the National Guard of any State, not later than
15 years after the date of entry into force of the Convention on the
Marking of Plastic Explosives with respect to the United States, i.e.,
not later than June 21, 2013.
(c) * * *
(2) The shipment, transportation, transfer, receipt, or possession
of any plastic explosive that was imported or
[[Page 55629]]
brought into, or manufactured in the United States prior to April 24,
1996, by or on behalf of any agency of the United States performing a
military or police function (including any military reserve component)
or by or on behalf of the National Guard of any State, not later than
15 years after the date of entry into force of the Convention on the
Marking of Plastic Explosives with respect to the United States, i.e.,
not later than June 21, 2013.
(d) * * *
(2) ``Date of entry into force'' of the Convention on the Marking
of Plastic Explosives means that date on which the Convention enters
into force with respect to the U.S. in accordance with the provisions
of Article XIII of the Convention on the Marking of Plastic Explosives.
The Convention entered into force on June 21, 1998.
* * * * *
Signed: February 10, 1999.
John W. Magaw,
Director.
Approved: March 10, 1999.
John P. Simpson,
Deputy Assistant Secretary (Regulatory, Tariff and Trade Enforcement).
[FR Doc. 99-26771 Filed 10-13-99; 8:45 am]
BILLING CODE 4810-31-P