April 24, 2012

Mr. Richard Patterson, Managing Director
Sporting Arms and Ammunition Manufacturers Institute, Inc.
Flintlock Ridge Office Center
11 Mile Hill Road
Newtown, CT 06470

Dear Mr. Patterson:

Thank you for your May 31, 2011, letter to the Occupational Safety and Health Administration (OSHA), regarding OSHA's notice terminating the rulemaking to amend its Explosives and blasting agents standard, 29 CFR §1910.109 (hereafter "explosives standard"). Your letter stated that the notice of termination created some confusion within your industry, regarding compliance with the explosives standard. You asked OSHA three questions (paraphrased below) about the meaning and effect of the notice of termination.

Question 1: The notice of termination provides:

[p]ursuant to Section 4(b)(l) 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."

You ask OSHA to clarify what it meant by the term "in most situations."

OSHA's Response: The OSH Act gives OSHA broad authority to promulgate and enforce standards to promote workplace safety and health¹. However, OSHA's authority to regulate working conditions is restricted by §4(b)(1) of the OSH Act, which states that:

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies ... exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health. In the notice of termination, when OSHA stated that "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," it referred to those situations where, pursuant to §4(b)(l), another Federal agency preempts OSHA's jurisdiction. See, for example, Compliance Policy for Manufacture, Storage, Sale, Handling, Use and Display of Pyrotechnics, CPL 02-01-053 (Oct. 27, 2011) (setting forth OSHA policy regarding §4(b)(l) preemption of the explosives standard by the Bureau of Alcohol, Tobacco, Firearms and Explosives, attached.)

OSHA qualified its response in the notice of termination (stating "most situations" rather than "all situations") because Congress may nullify the effect of §4(b)(l). For instance, although the Hazardous Materials Transportation Act (§49 U.S.C. 5101 et seq.) makes the Department of Transportation (DOT) responsible for regulating the safe transportation of explosives in intrastate, interstate, and foreign commerce, that Act provides that certain actions DOT may take pursuant to the Act do not constitute exercises of statutory authority under §4(b)(l). 49 U.S.C. §5107(g). In situations like the one addressed in the Hazardous Materials Transportation Act, Congress provided that what might otherwise be an "exercise" of authority by a Federal agency does not act to preempt OSHA's jurisdiction.

Question 2: The notice of termination provides:

[e]mployers 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.

You ask whether compliance with the PSM standard obviates the need to comply with the explosives standard.

OSHA's Response: No. The explosives standard continues to apply when an employer complies with the PSM standard. The plain language of the explosives standard provides in its scope provision, 29 CFR §109(k), that employers must comply with both the explosives standard and the PSM standard. The scope provision provides, in relevant part, that the standard applies to "the manufacture, keeping, having, storage, sale, transportation, and use of explosives, blasting agents, and pyrotechnics" and that "[t]he manufacture of explosives [and pyrotechnics] shall also meet the requirements contained in 29 CFR §1910.119." (Emphasis added).

Question 3: The notice of termination provides:

[o]n 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 [explosives] 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 Nitrate².

You state that NFPA 495-1970 has been revised and updated over the last thirty years and ask OSHA to clarify whether it intends to enforce 29 CFR §1910.109 using the most current NFPA 495 standard?

OSHA's Response: OSHA does not enforce national consensus standards; it enforces its own standards. In the event a specific provision in the revised NFPA standard does not meet the requirements of the explosives standard, following that provision may constitute a de minimis condition³. OSHA will address specific enforcement questions about particular provisions in the revised NFPA standard on a case-by-case basis.

Sincerely,



Thomas Galassi, Director
Directorate of Enforcement Programs

[Attachment]

¹  29 U.S.C. §651.   [Return to Text]

²  Section 6(a) of the OSH Act granted OSHA authority to promulgate national consensus standards as OSHA standards within two years of the effective date of the OSH Act without regard to the procedures required by the Administrative Procedure Act, 5 U.S.C. Ch. 5, or the OSH Act. §29 U.S.C. 655(a).   [Return to Text]

³  De minimis conditions are conditions in which an employer implemented a measure different from one specified in a standard, but that has no direct or immediate relationship to safety or health. The Agency does not issue citations or penalties for de minimis conditions, nor is the employer required to bring the workplace into compliance, that is, there are no abatement requirements. Pursuant to OSHA's de minimis policy, which is set forth in OSHA Instruction CPL 02-00-150 ("Field Operations Manual"), a de minimis condition exists when an employer complies with a consensus standard rather than with the standard in effect at the time of the inspection and the employer's action clearly provides equivalent or more effective employee protection.   [Return to Text]