August 8, 1974

Mr. Howard J. Schulte
Deputy Assistant Secretary
U.S. Department of Labor
Occupational Safety and
Health Administration
Washington, D.C. 20210

Dear Mr. Schulte:

This is in reply to your letter of July 5, 1974, forwarding for our consideration a paper on procedural arrangements and jurisdictional boundaries between the Occupational Safety and Health Administration (OSHA) and other agencies. In that letter it was noted that a formal meeting between the Bureau of Alcohol, Tobacco and Firearms (ATF) and OSHA would not be necessary because the Staff Officers of each Bureau are already coordinating the development and improvement of standards affecting explosives storage.

We acknowledge the receipt of your letter with its enclosure concerning respective authorities with which we are in agreement. We look forward to a continuing relationship with OSHA in order to pursue on a mutually beneficial course our respective responsibilities.

Sincerely yours,

Rex D. Davis Director

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July 5, 1974

Mr. Rex D. Davis
Director
Bureau of Alcohol, Tobacco
and Firearms
U.S. Department of the Treasury
Washington, D.C. 20226

Dear Mr. Davis:

Because the Bureau of Alcohol, Tobacco and Firearms (ATF) has authority to issue and enforce standards that effect occupational safety and health, it is necessary to determine the extent of this authority with respect to that of the Occupational Safety and Health Administration (OSHA) in order to prevent duplication of effort. This letter with enclosure 1 sets forth in detail the respective jurisdictions of each agency and provides for continued coordination between these agencies in the development of standards and the exchange of enforcement information.

Agreements and letters outlining procedural arrangements and jurisdictional boundaries between OSHA and other agencies have been signed, and an agreement between OSHA and ATF has been proposed. A meeting, however, was held on April 2, 1974 between members of ATF's General Counsel and members of OSHA's Office of the Solicitor. At this meeting it was determined that a formal agreement would not be necessary at this time for the following reasons: OSHA and ATF are already coordinating the development and improvement of standards affecting explosives storage. Both agencies are presently working with other Federal and State agencies engaged in the regulation of explosives storage in order to bring about as much consistency in regulations as is possible given the different purposes of OSHA, ATF, and other concerned agencies.

In a letter, dated March 8, 1974, you discussed ATF's statutory responsibility in the explosives area. (See enclosure 2) OSHA will accept the definitions of coverage included in this letter, and will provide for the enforcement of OSHA standards in all other working conditions that involve the storage of explosive materials, over which the Secretary of the Treasury has not exercised statutory authority that might affect occupational safety or health.

To ensure comprehensive safety and health coverage for the U.S. workforce, we recommend that OSHA and ATF continue to cooperate with each other and with other concerned Federal and State agencies, in order to promote consistency in the development of job safety and health regulations affecting explosives storage, and, with due regard for the independent and distinct legislative mandates of each agency, to achieve uniformity of approach in long range planning to avoid duplication of effort. We further recommend that the two agencies continue the exchange of enforcement information.

I submit this letter to you as guidance to further the relationship between our agencies in the enforcement and development of consistent and improved health and safety standards involving the storage of explosives materials. Your review of this letter would be appreciated. We will be happy to meet with you if you have any questions or would like additional information on the content of this letter.

Sincerely,

Howard J. Schulte Deputy Assistant Secretary

Enclosure

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Respective Authorities of
the Occupational Safety and Health Administration (OSHA)
and
the Bureau of Alcohol, Tobacco and Firearms (ATF)
Concerning Employee Safety and Health in Explosives Storage Area

1. The Bureau of Alcohol, Tobacco and Firearms' Statutes

   Title XI of the Organized Crime Control Act of 1970 (Public Law 91-452, 84 Stat. 952; 18 U.S.C. section 841 et seq. (1970)) was enacted on October 15, 1970; however, the regulatory provisions became effective on February 12, 1971. In enacting Title XI, the Congress declared that the purpose of the title "is to protect interstate and foreign commerce against interference and interruption by reducing the hazard to persons and property arising from the misuse and unsafe or insecure storage of explosive materials" (18 U.S.C. section 1101).

   Title XI establishes a system of Federal licenses and permits. Licenses are required of all explosive manufacturers, importers, and dealers. Permits are required of all users who depend on interstate commerce to obtain explosives. Licensing authority is vested exclusively in the Secretary of the Treasury (18 U.S.C. section 841(k) and 847), who is also authorized to regulate the storage of explosives.

   In this regard, under 18 U.S.C. section 842 (j) no person may store explosive materials in a manner not in conformity with regulations promulgated by the Secretary of the Treasury. Comprehensive regulations for the storage of explosives are contained in 26 CFR section 181.

   Under 18 U.S.C. section 843 (f) and 26 CFR section 181.24, the Secretary of the Treasury is authorized to enter the premises, including places of storage, of any licensee or permittee for the purpose of inspecting or examining any records or documents required to be kept by such persons, and any explosive materials kept or stored at such premises. In addition, under 18 U.S.C. section 846 and 26 CFR section 181.31, the Secretary of the Treasury is authorized to inspect the site of any accident or fire in which there is reason to believe that explosive materials were involved, in order that if any such incident has been brought about by accidental means, precautions may be taken to prevent similar accidents from occurring. In this regard, 18 U.S.C. section 846 authorized the Secretary of the Treasury to enter into or upon any property where explosive materials have been used, are suspected of having been used, or have been found in an otherwise unauthorized location.

   Certain exceptions to this authority are set forth in 18 U.S.C. section 845 and 26 CFR section 181.141 with respect to the regulatory provisions of the act as distinguished from the criminal provisions. Thus, the regulatory provisions of the Department of the Treasury regarding storage do not apply to the following:

   1. Any aspect of the transportation of explosive materials via railroad, water, highway, or air which are regulated by the U.S. Department of Transportation and agencies thereof.

   2. The use of explosive materials in medicines and medicinal agents in the forms prescribed by the official United States Pharmacopoeia, or the National Formulary.

   3. The transportation, shipment, receipt, or importation of explosive materials for delivery to any agency of the United States or to any State or political subdivision thereof.

   4. Small arms ammunition and components thereof.

   5. Black powder in quantities not to exceed five pounds.

   6. The manufacture under the regulation of the military department of the United States of explosive materials for, or their distribution to or storage or possession by the military or naval services or other agencies of the United States.

   7. Arsenals, navy yards, depots, or other establishments owned by, or operated by or on behalf of, the United States.

   8. The importation and distribution of fireworks in a finished state, commonly sold at retail for personal use in compliance State laws or local ordinances (common fireworks, Class C only).

   9. Gasoline, fertilizers, propellant actuated devices, or propellant actuated industrial tools manufactured, imported, or distributed for their intended purposes."

2. The Occupational Safety and Health Administration

   Statutes Pursuant to the Occupational Safety and Health Act of 1970 (the Act), Public Law 91-596 (84 Stat. 1590, 29 U.S.C. et seq.), OSHA has broad authority to enter workplaces and other environments where work is performed in any State and other places under United States jurisdiction, to inspect and investigate working conditions in such workplaces to ensure that they are in conformity with safety and health standards promulgated by OSHA and with the general duty clause of the Act (section 5(a)(1)). However, section 4(b)(1) of the Act provides that the provisions of the Act will not apply with respect to employees where another Federal agency has exercised express statutory authority to prescribe or enforce standards affecting occupational safety or health as to a particular working condition. Thus, the Act does not apply to working conditions involving the storage of explosive materials over which the Secretary of the Treasury has exercised his authority under 18 U.S.C. section 841 et seq. where that exercise affects occupational safety and health. The Secretary of Labor has complete authority, however, over working conditions which involve those areas excepted under 18 U.S.C. section 845 and 26 CFR section 181.141 and over all other working conditions that involve the storage of explosive materials over which the Secretary of the Treasury has not exercised statutory authority.