Rule2026-19694
Annual Notices on Explosive Materials Storage Facilities to Local Fire Authority
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 25, 2026
Effective
October 26, 2026
Issuing agencies
Justice DepartmentAlcohol, Tobacco, Firearms, and Explosives Bureau
Abstract
The Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") is amending Department of Justice ("Department") regulations on reporting explosive materials storage. Currently, any person who stores explosive materials subject to ATF's explosives regulations must notify the authority having jurisdiction for fire safety in that locality when they begin storing explosives at that site. This rule adds a requirement to also submit written notices every 12 months thereafter and when the person ceases storing explosives at that location and to retain copies of the notices for five years. These changes are intended to increase public safety, particularly for first responders.
Full Text
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<title>Federal Register, Volume 91 Issue 185 (Friday, September 25, 2026)</title>
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[Federal Register Volume 91, Number 185 (Friday, September 25, 2026)]
[Rules and Regulations]
[Pages 60803-60821]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-19694]
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DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Part 555
[Docket No. ATF-2023-0001; ATF 2013R-15P]
RIN 1140-AA51
Annual Notices on Explosive Materials Storage Facilities to Local
Fire Authority
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives,
Department of Justice.
ACTION: Final rule.
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SUMMARY: The Bureau of Alcohol, Tobacco, Firearms, and Explosives
(``ATF'') is amending Department of Justice (``Department'')
regulations on reporting explosive materials storage. Currently, any
person who stores explosive materials subject to ATF's explosives
regulations must notify the authority having jurisdiction for fire
safety in that locality when they begin storing explosives at that
site. This rule adds a requirement to also submit written notices every
12 months thereafter and when the person ceases storing explosives at
that location and to retain copies of the notices for five years. These
changes are intended to increase public safety, particularly for first
responders.
DATES: This rule is effective October 26, 2026.
FOR FURTHER INFORMATION CONTACT: Office of Regulatory Affairs; by email
at <a href="/cdn-cgi/l/email-protection#df908d9e9fbeabb9f1b8b0a9"><span class="__cf_email__" data-cfemail="b2fde0f3f2d3c6d49cd5ddc4">[email protected]</span></a>, by mail at Office of Regulatory Affairs; Enforcement
Programs and Services; Bureau of Alcohol, Tobacco, Firearms, and
Explosives; 99 New York Ave. NE; Washington, DC 20226, or by telephone
at 202-648-7070.
SUPPLEMENTARY INFORMATION:
I. Background
Title XI of the Organized Crime Control Act of 1970 (``OCCA''),
Public Law 91-452, 84 Stat. 922 (1970) added 18 U.S.C. chapter 40
(Importation, Manufacture, Distribution, and Storage of Explosive
Materials) to part I, on crimes. One of the stated purposes for title
XI was to reduce the ``hazard to persons and property arising from
misuse and unsafe or insecure storage of explosive materials.'' Public
Law 91-452, sec. 1101, 84 Stat. at 952. The Attorney General is
responsible for implementing title XI. See 18 U.S.C. 847. The Attorney
General has delegated that responsibility to the Director of ATF
(``Director''), subject to the direction of the Attorney General and
the Deputy Attorney General.\1\ See 28 U.S.C. 599A(b)(1), (c)(1); 28
CFR 0.130(a)(1)-(2); Treas. Order No. 221(2)(a), (d), 37 FR 11696-97
(June 10, 1972). Regulations in 27 CFR part 555 implement title XI.
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\1\ In Attorney General Order Number 6353-2025, the Attorney
General delegated authority to the Director to issue regulations
pertaining to matters within ATF's jurisdiction, including under
OCCA, the National Firearms Act, and the Gun Control Act. ATF's
jurisdiction also includes the Arms Export Control Act and the
Contraband Cigarette Trafficking Act.
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On August 24, 1998, ATF published in the Federal Register a final
rule to implement a storage notification requirement for manufacturers
and other persons who store explosives.\2\ ATF amended the regulations
in 27 CFR part 55 (now part 555) \3\ to require that any person who
begins storing explosive materials must notify the authority having
jurisdiction for fire safety in the locality in which the explosive
materials are being stored of the storage type, magazine capacity, and
location of each site where such explosives are stored (the structure
storing the explosive materials is hereinafter referred to as a
``magazine'').\4\ The 1998 final rule was issued in response to
numerous deaths and injuries sustained by emergency response personnel
responding to fires and other emergencies at sites where explosives
were stored without the knowledge of state and local officials.\5\
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\2\ Commerce in Explosives, final rule, RIN 1512-AB55, 63 FR
44999 (August 24, 1998). In this rule, ATF amended the regulations
in 27 CFR part 55 (now part 555) to require that any person who
begins storing explosive materials must notify the authority having
jurisdiction for fire safety in the locality in which the explosive
materials are being stored of the storage type, magazine capacity,
and location of each site where such explosives are stored. The rule
was issued in response to numerous deaths and injuries sustained by
emergency response personnel responding to fires and other
emergencies at sites where explosives were stored without the
knowledge of state and local officials. See Commerce in Explosives
proposed rule, RIN 1545-AU09, 61 FR 53688 (Oct. 15, 1996).
\3\ On January 24, 2003, ATF issued a final rule titled
``Reorganization of Title 27, Code of Federal Regulations,'' which,
among other things, removed part 55 from chapter I and recodified it
as part 555 in the new chapter II. 68 FR 3744.
\4\ Although the reporting requirement is per site or location,
ATF defines ``magazine'' as ``Any building or structure, other than
an explosives manufacturing building, used for storage of explosive
materials.'' See 27 CFR 555.11. As a result, for easier reference,
ATF is referring in this rule to all structures storing explosive
materials as ``magazines.''
\5\ Commerce in Explosives, notice of proposed rulemaking, RIN
1545-AU09, 61 FR 53688 (Oct. 15, 1996).
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ATF is concerned with the safety of emergency response personnel
[[Page 60804]]
responding to fires on sites where explosives are stored, and the
safety of the public around such areas. It is important that first
responders are aware of explosives storage when responding to a fire
site so they can take action that accounts for the explosives. For
example, firefighters and other fire safety officials generally do not
attempt to fight a fire that involves explosive materials because of
the significant danger an explosion poses to such responders. If they
know of the existence of explosives in such close proximity to a fire
before they arrive, officials often evacuate the facility and the
surrounding area to ensure the safety of the first responders and the
public, rather than fighting the fire as they would if explosives were
not present.\6\
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\6\ See, e.g., Centers for Disease Control and Prevention,
National Institute for Occupational Safety and Health (NIOSH) Report
# F2013-11, Recommendation #1, pg. 23 (finding that a detailed pre-
plan that included thorough assessment of characteristics of
material stored at high-risk facility could have identified
potential for risks of fighting the fire, including explosion) and
Appendix Three, pg. 48 (recommending that owners of storage
facilities coordinate with local first responders as part of a site
emergency plan, and that firefighters, before responding to a fire
involving explosive materials, know the quantity, storage types, and
locations of explosive materials in their communities and include in
their procedures a decision process to determine whether such a fire
should be fought or focus should be on moving themselves to safe
location and evacuating nearby residents); National Fire Protection
Association (``NFPA''), NFPA 1500 Standard on fire department
occupational safety and health program, 2013 ed, section 8.3.2
(stating that, in situations in which the risk to fire department
members are excessive, activities shall be limited to defensive
operations); Institute of Makers of Explosives (IME) guidance Safety
and Security Guidelines for Ammonium Nitrate (recommending that when
any oxidizer fire is involved, firefighters should avoid trying to
extinguish the fire; instead, concentrate on evacuating the area,
including all civilians, and withdraw to a safe location);
Department of Transportation, 2016 Emergency Response Handbook,
(containing entire sections on isolation and evacuation distances
when responding to hazardous materials transportation incidents);
Environmental Protection Agency, Occupational Safety and Health
Administration, Bureau of Alcohol, Tobacco, Firearms, and
Explosives, Joint Safety Advisory: Chemical Advisory: Safe Storage,
Handling, and Management of Solid Ammonium Nitrate Prills, EPA 550-
F-15-001 (June 2015) (when responding to a fire at a facility with
hazardous materials, have an up-to-date pre-incident plan including
information on the materials' storage location and quantities, and
first consider whether the fire can be fought or if the explosive
material makes the approach too hazardous, at which point move to a
safe location and focus on evacuating).
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The regulation at 27 CFR 555.201(f) requires that all persons
storing explosives report certain information when they begin storing
the explosive materials but does not specifically require subsequent
reporting that might reflect changes in storage types and magazine
capacity. Executive Order 13650, ``Improving Chemical Facility Safety
and Security,'' signed August 1, 2013, discussed the need to implement
safety measures for handling and storing chemicals, to include
explosive materials. In addition, it established a working group co-
chaired by the heads of the Environmental Protection Agency (``EPA'')
and the Departments of Labor and Homeland Security. Membership included
the heads of the Departments of Justice, Agriculture, and
Transportation, who would work with the co-chairs to carry out the
responsibilities of the executive order. A final report, submitted by
the Chemical Facility Safety and Security Working Group to the
President in May 2014, noted that ATF would work closely with
explosives industry associations to develop best practices, procedures,
or regulations to improve communication with fire authorities,
including more frequent notification of significant changes to storage
facilities.\7\
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\7\ ``Executive Order 13650, Actions to Improve Chemical
Facility Safety and Security--A Shared Commitment, Report for the
President,'' at 51 (May 2014) <a href="https://www.osha.gov/chemicalexecutiveorder/final_chemical_eo_status_report.pdf">https://www.osha.gov/chemicalexecutiveorder/final_chemical_eo_status_report.pdf</a>.
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Explosives industry association representatives provided input on
these topics during discussions with ATF conducted in connection with
implementing Executive Order 13650. These representatives recommended
that ATF amend the notice requirement in Sec. 555.201(f) to require
annual notices.\8\ They stated that this would increase communication
between industry members and their local emergency responders, mitigate
the negative effects of turnover in the emergency response community,
and increase training opportunities for the local responders. Based on
additional discussions with industry representatives over time, the
Department and ATF consider annual notices necessary as a means to
increase public safety by fostering more communication between persons
who store explosives and fire authorities, increasing and updating
first responder knowledge about explosives stored in the area, and
enabling them to better plan and respond to fires that occur in
locations where explosives are stored.
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\8\ Notice of Public Listening Sessions, DHS-2013-0075, 78 FR
69433 (November 19, 2013). See also, e.g., DHS-2013-0075-0056 at 6
(minutes from December 11, 2013, Public Listening Session).
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II. Notice of Proposed Rulemaking
On August 23, 2023, the Department published in the Federal
Register a notice of proposed rulemaking (``NPRM'') entitled ``Annual
Reporting of Explosive Materials Storage Facilities to the Local Fire
Authority,'' 88 FR 57370, proposing changes to 27 CFR 555.201(f). The
comment period closed November 21, 2023.
The Department issued this NPRM as a result of ATF's consultations
with explosives industry associations. The proposed rule explained that
ATF believes that a requirement for annual notices would: (a) lead to
more frequent contact between persons storing explosive materials and
local fire authorities; (b) ensure that explosives storage information
would be provided in a timely manner to new first responder staff
members; and (c) reinforce the importance of the information to fire
response organizations. The proposed rule expressed ATF's belief that a
recurring 12-month notice timeframe would best balance the need for
these results against the burden of more frequent notices.
For these reasons, the Department proposed to amend 27 CFR
555.201(f) to require that, every 12 months after initial notification,
any person who is storing explosive materials must notify the authority
having jurisdiction for fire safety (in the locality in which the
explosive materials are being stored) that they are continuing to store
explosive materials, and to notify the same authority when the person
ceases storing explosive materials at that location. The proposed
amendment further required that the notice must include the type of
explosives, magazine capacity, and location of each site where such
materials are stored. In addition, the NPRM proposed a requirement that
the person providing these notices must retain a copy of each notice
for five years from the date of the notice, and make these records
available for ATF inspection at all reasonable times.
III. Analysis of Comments and Agency Responses
In response to the proposed rule, ATF received approximately 500
comments. The commenters included industry associations, firearms
owners, state marshals, county officials, firefighters, hazardous
material specialists, and the public.
A. Supporting Comments
1. Enhances Safety
Comments Received
Several commenters expressed support for the proposed rule because
they felt explosives in a facility represent an obvious safety issue
for the public and those who put their lives on the line every day,
such as first
[[Page 60805]]
responders. Some of these commenters focused on safety for first
responders. For example, one commenter stated anything that helps first
responders come home alive at the end of the day requires the utmost
attention. Another commenter added that this proposed rule would
enhance the safety and security of first responders through increased
awareness of where explosive materials are located.
Other commenters focused on public safety or safety to both public
and first responders. For example, one commenter emphasized that
``having updated information on the locations and amounts of explosives
stored in the jurisdiction will provide transparency and facilitate
better preparation in advance of an incident.'' Another commenter
similarly expressed that ensuring fire authorities are aware of
location, type, and quantity of explosive materials in their
jurisdiction would enhance not only their safety but that of the public
as well. They also stated the proposed rule would help ATF enforce the
federal explosives laws and regulations more effectively. Another
commenter also added that the safety benefits of this rule would
outweigh the costs and burdens of the notice requirement.
ATF Response
ATF agrees the rule would increase safety for first responders, who
might be required to respond to incidents at sites where explosives are
stored, as well as the public generally. First responders would be
better prepared to respond to incidents at sites where explosives are
stored if they receive annual notification regarding explosives being
stored at a given location. The federal explosives regulations
currently require all persons who store explosive materials subject to
ATF's explosives regulations in 27 CFR part 555 to notify the authority
having jurisdiction for fire safety in the locality in which the person
is storing explosive materials of the type of explosive materials, the
magazine capacity, and the location of each site where they are storing
explosive materials. The existing regulations require this notification
when the person begins storing explosives at a site. The rule would add
a requirement that the person storing explosive materials must also
notify the same authority of the same information (updated as
applicable) every 12 months thereafter and when they cease storing
explosive materials.
2. Increases Communication With Emergency Responders and Aids Emergency
Responder Risk Assessment
Comments Received
Some commenters felt the proposed rule would aid law enforcement
and communities in preparing for and adapting to potential explosives
issues by providing important information and enhancing communications.
For example, one industry association stated that the notice
requirement would ensure: (1) information is accurate; (2) current
information is available to local responders as well as the community;
and (3) local responders could make adjustments to local response plans
based on this information, if needed. Another commenter suggested the
proposed notice requirements should become a requirement to inform the
local fire department if explosives are in a particular location. One
commenter added that this rule change could help the industry educate
first responders about the risks and dangers of responding to fires
that involve explosives and assist in ``familiarizing responders with
the facilities' risk assessments and emergency response and evacuation
plans.'' They also added that annual notices would increase
communication and provide transparency among industry members and local
responders in their jurisdiction. A final commenter stated that the
rule would not impose any new requirements but only clarify and
streamline the notification process.
ATF Response
ATF agrees that increased communication between persons storing
explosive materials and fire-safety authorities would better prepare
first responders in the event of an incident at a site where covered
explosive materials are stored. Knowing about the type of explosives,
capacity of any magazine(s) at a site, and the location of each site
where explosives are stored is vital for first responders to prepare an
effective plan when responding to an emergency at a given location. As
stated previously, all persons are already required to report
explosives storage type, magazine, and location information when they
begin storing explosive materials covered by ATF regulations. The rule
would not change that requirement but would add a requirement that such
persons must then submit notices with the same information (updated as
applicable) every 12 months thereafter and when they cease storing
explosive materials. This would ensure emergency responders have
current and accurate information regarding the presence, and potential
amount (magazine capacity), of explosive materials if called to respond
to a location where covered explosives are being stored.
3. Reasonable Notice Requirements
Comments Received
In addition to expressing support for the proposed notice
requirement, some commenters also stated that the record-keeping
requirement was supportable because it did not impose an undue burden
on industry. For example, one commenter emphasized that annual notices
as proposed in the rule would not be an inconvenience. They also stated
that the proposed rule would not be an invasion of privacy because the
notices would be sent only to local authorities, rather than to a
centralized national organization. Another commenter did not believe
the proposed changes would infringe on Constitutional rights because it
is already a requirement to notify local officials of explosives
storage in the area and this rule just adds a requirement to update
that notice periodically. This commenter also said the proposed rule is
not burdensome because it just improves the notice process of explosive
materials storage. Another commenter agreed that annual notices will
reinforce the importance of the information to local responders. And
one commenter indicated that 30 minutes as an estimate of the time it
would take to notify annually is a reasonable time and would not be a
burden.
ATF Response
ATF agrees that the rule would not place an undue burden on
industry. Most explosives industry members established a system to
notify their local fire authority under the current regulations when
they began storing explosives at a given site, and a system to notify
their local fire authority in the event of an explosives incident. The
subsequent annual notices could be in the same format as the first one,
and if the person has made no changes that year to the existing
explosives storage, the next annual notice would not need to change. If
there is a change to the explosives storage, making an update to the
previous notice would require only minimal effort.
The regulations currently require that the notification include the
storage type, magazine capacity, and location of each site where such
materials are stored. The rule would not impose any new additions to
what is already included in the notice requirement. The only change
would be the annual nature of the notice
[[Page 60806]]
requirement. As a result, notifying annually would not require new
processes or more than minimal additional work. Once the person storing
covered explosives notifies the locality in writing, they need only
retain a copy (which may be in digital form) of that notice for five
years. ATF therefore does not believe the additional requirement as
stated in the rule would impose a significant burden on the explosives
industry. ATF does believe, however, that it would significantly
increase the safety to first responders who are responsible for
responding to incidents at sites where explosives are stored.
ATF also agrees that this rule does not infringe on any
Constitutional rights for the reasons discussed in section III.B.3 of
this preamble.
B. Opposing Comments
1. Rule Is Unnecessary
Comments Received
Some commenters disagreed with the proposed rule and thought the
Department should not finalize it because they considered it
unnecessary, invalid, not factual or reasonable, or even foolish,
ridiculous, or recklessly irresponsible, without providing further
explanation. A few commenters stated that not only did they think the
Department was imposing an unnecessary and unjustified regulation on
the public, they thought the proposed rule also did not provide a
benefit to the public.
A few commenters provided additional explanation on the subject.
One commenter stated that there has been no evidence that ``ordinary
citizens'' possessing explosive materials present a widespread problem.
A couple of other commenters stated that the proposed rule was
confusing and needed to clarify how notifying authorities about
magazine locations would help local fire departments. Another commenter
remarked that first responders need to know what is being stored only
during an emergency. One commenter who thought the proposed rule was
unnecessary said there is no guarantee that the notice process would be
accurate. A couple of other commenters questioned ATF's evidence
supporting the need for this rule and stated that there were no
problems with the current situation, so there is no need for a rule.
One commenter believed the proposed rule was unnecessary as, the
commenter stated, there are already mechanisms in place to keep first
responders safe when responding to major residential or structural
fires. Other commenters elaborated on this topic by specifying that the
proposed rule would be duplicative of other, already-existing,
government agency or organization requirements, such as EPA Tier II
Inventory Form, Occupational Safety and Health Administration's
(``OSHA's'') ``right to know'' requirements, and hazmat placards under
Department of Transportation (``DOT''), the International Fire Code, or
the National Fire Protection Association's (``NFPA'') codes and
standards. Similarly, a couple of other commenters added that hazmat
permits already provide adequate notification to fire responders about
the presence of dangerous materials.
Some commenters considered the proposed rule to be unnecessary or
inappropriate due to concerns about the type of explosives they believe
would have to be reported, and tracking or registry aspects they
believed were involved in the notice requirements. For example,
regarding the type of explosives, two commenters stated that gunpowder
up to 50 pounds has never had a registration requirement, and there is
no need for one now. Another added that the proposed rule was
unnecessary because black powder notice requirements are already
mandated by federal and state regulations. By contrast, a third
commenter said they supported the proposed rule because it applied only
to certain explosives, such as dynamite or similar explosives used for
construction, demolition, and mining.
On the subject of tracking or creating a registry, one commenter
stated that ATF failed to provide any evidence that a national database
is a necessary or an appropriate way to maintain a list that is useful
to volunteer fire departments, whereas another commenter stated that
they considered the changes in the proposed rule to be crucial because
they would be a form of keeping track of weapons in our country.
ATF Response
ATF agrees that the rule should not apply to all materials that can
explode because some of them (including small amounts of gunpowder) are
already exempt from ATF's explosives regulations. While the rule
requires all persons storing explosives to submit notices about those
explosives annually, that requirement would apply only to explosive
materials that are subject to ATF's explosives regulations in 27 CFR
part 555. The rule would not apply to explosive materials that are
specifically exempt from ATF's explosives regulations, such as consumer
fireworks, small-arms ammunition, and components of small-arms
ammunition (e.g. primers, propellant, etc.). See 18 U.S.C. 845(a); 27
CFR 555.141. In addition, the exempt explosive materials include
commercially manufactured black powder in quantities not exceeding 50
pounds (as well as percussion caps, safety and pyrotechnic fuses,
quills, quick and slow matches, and friction primers) intended to be
used solely for sporting, recreational, or cultural purposes in antique
firearms as defined in 18 U.S.C. 921(a)(16), or in antique devices
exempted from the term ``destructive device'' in 18 U.S.C. 921(a)(4).
See 18 U.S.C. 845(a) and the 2025 Annual List of Explosive Materials,
90 FR 25077 (June 13, 2025). See also ATF's response in section III.B.7
of this preamble.
Therefore, the annual notice requirement applies to the same people
who are already required to submit a notice when they begin storing
explosives covered by ATF's regulations.
ATF disagrees that the rule is unnecessary. The rule is designed to
protect the safety of emergency response personnel responding to fires
on sites where explosives are stored. It is important that first
responders are aware of explosives storage prior to responding to a
fire site so they can take remedial action that accounts for the
explosives. While the rule covers only the types of explosive materials
that are regulated by ATF, those materials pose a risk to emergency
response personnel, including when possessed by unlicensed ``ordinary
citizens.'' The rule therefore applies to all ``persons,'' as defined
by 18 U.S.C. 841 and 27 CFR 555.11, not just federal explosives
licensees/permittees. Federal regulations generally require that a
person have a license/permit to obtain explosive materials covered by
ATF regulations, but all persons, even those without a license/permit,
must store explosives in conformity with part 555. 18 U.S.C. 842(j), 27
CFR 555.26 and 555.29. A person with a license/permit could acquire
explosives regulated under part 555, subsequently not renew that
license/permit, and legally retain those explosive materials. This
would result in an ``ordinary citizen'' who is not a licensee/permittee
retaining explosives inventory of a type regulated by ATF that could
pose a risk to the public and emergency response personnel. Federal law
and regulations currently require any person possessing federally
regulated explosive materials to store those explosives in accordance
with part 555, which includes a requirement to report those explosives
to local fire authorities. The rule merely
[[Page 60807]]
requires any person storing such explosives to notify local authorities
of such storage every 12 months and when they cease storing such
materials. Again, the rule does not cover explosives not regulated by
ATF pursuant to part 555.
Additionally, in response to the comments that stated the rule is
unnecessary because ATF provided no evidence that a national database
was needed, or that asserted the notice requirement involves tracking
or registry aspects, ATF notes that it is not proposing a national
database or registry of explosive materials stored by individuals. In
fact, the rule requires only that the individual provide notification
of the type of explosive, the magazine capacity, and the location of
the magazine to their local fire safety authority, not to ATF. The
notification would not require persons storing explosive materials to
report on specific amounts or changes in the amounts of explosives
stored; only the magazine capacity, which alerts first responders to
the potential danger for which they should prepare and dictates the
distance the magazine must be from other structures, etc., for safety
purposes.
Licensees/permittees already inform ATF of magazine capacity and
their magazines are inspected periodically by ATF to ensure they meet
distance and other safety requirements. This rule does not extend that
oversight; it simply requires persons to report magazine capacity to
local fire authorities, who then can prepare to respond and who would
know only the magazine capacity for magazines in their jurisdiction.
Nor would local fire authorities submit these notices to ATF. Rather,
the person making the notification would have to retain a copy of the
written notice (which may be in digital form) for five years. Copies
retained by licensees/permittees would be subject to inspection by ATF,
while copies retained by non-licensees/permittees would verify
compliance with the storage provisions of part 555.
ATF does not believe that the rule would duplicate existing
government agency requirements, including those provided as examples by
commenters. ATF is not aware of any other existing federal requirement
to notify local fire authorities about explosives storage locations. In
addition, ATF is the primary federal agency responsible for ensuring
that explosive materials are safely and securely stored. ATF believes
that requiring annual notification to the local fire authority will
benefit public safety by ensuring that first responders are better
prepared to respond to incidents at explosives storage sites.
2. Scope of Authority
Comments Received
Many commenters described the proposed rule as an overreach of
ATF's authority. Commenters stating that the proposed rule was an
overreach articulated different reasons for their belief. Several
commenters characterized the proposed rule as an attempt to circumvent
the rule of law and the congressional lawmaking process. For example,
many commenters stated that ATF does not have authority to make laws;
only Congress can, and some commenters believed the rule and its
changes to the law had to be passed by an act of Congress. Some
commenters stated that the proposed rule overstepped the Department's
authority by bypassing checks and balances and introducing laws. In a
similar vein, other commenters asked what authority or law gives ATF
the ability to make rules that end up having the weight of law. A
couple of commenters implored ATF to ``consider the implications of yet
another revision of law done outside the purview of Congress. While
this proposal sounds exceedingly logical on the surface, I am concerned
about the possibility of future overreach by [ATF] . . . . Today's
`common-sense' rules become tomorrow's `loopholes' that need to be
closed, and I believe this is a wide-open back door to future
restrictions.'' Two commenters cited to West Virginia v. Environmental
Protection Agency, 597 U.S. 697 (2022). One of them stated that,
according to the case, an act of Congress is needed to change how
powders have been recorded. The other commenter referred to the case in
support of the contention that ATF must, and can only, enforce the laws
that Congress creates.
A few other commenters more generally stated that the proposed rule
was an overreach into a realm that should be reserved to localities and
States. Another believed the proposed rule raised several concerns that
impact individuals on their own private property in ways that were
overreaching and heavy-handed. And another commenter believed the
overreach was predicated on assumptions that were not true, although
they did not state what those assumptions were.
A small number of commenters described the proposed rule as
arbitrary. One commenter opposed the rule based on the Administrative
Procedure Act, stating the proposed rule did not fall within ATF's
mandated purview and burdened intrastate agencies, without further
clarification.
Multiple commenters stated the proposed rule should not be
finalized because it would be challenged in court. Other commenters
stated that rulemaking procedures from ATF have repeatedly been struck
down by federal courts as an overreach of authority, so the Department
should not proceed with this rule; and it would be a ``moot point.''
Other commenters expressed the opinion that the rule would do nothing
but create expensive federal lawsuits and would be a waste of
government resources and taxpayer dollars. Another commenter stated
that, instead of focusing on creating new rules that are likely to be
challenged and struck down in federal court, it would be more prudent
for ATF to concentrate its efforts on enforcing existing laws and
regulations. By directing its attention toward individuals who are
breaking the current laws, the commenter added, ATF could better ensure
public safety and uphold the principles of justice.
ATF Response
In response to all the comments on this topic, which in various
ways indicate an underlying perception that the rule would overreach
and invade privacy because its scope would cover powder and involve
invading peoples' homes, ATF notes that the rule applies only to
explosive materials that are subject to ATF's explosives storage
regulations at 27 CFR part 555, subpart K, which sets out explosives
storage requirements. It does not apply to those explosive materials
that are specifically exempt from ATF's regulations, such as consumer
fireworks, small-arms ammunition, components of small-arms ammunition
(e.g., primers, propellants), and commercially manufactured black
powder in quantities not exceeding 50 pounds (as well as percussion
caps, safety and pyrotechnic fuses, quills, quick and slow matches, and
friction primers) intended to be used solely for sporting,
recreational, or cultural purposes in antique firearms as defined in 18
U.S.C. 921(a)(16), or in antique devices exempted from the term
``destructive device'' in 18 U.S.C. 921(a)(4). See 18 U.S.C. 845; 27
CFR 555.141.
ATF's explosives storage regulations already require that persons
storing covered explosive materials must report the stated information
to authorities having local jurisdiction for fire safety when the
person begins storing covered explosive materials. The rule would
simply require annual notices thereafter. Nothing else, including the
kinds of explosive materials subject to this requirement, would change.
ATF believes that the rule would provide
[[Page 60808]]
first responders with information vital to ensure their safety should
an incident occur at an explosives storage site.
West Virginia v. Environmental Protection Agency is inapplicable
because there is no ``extraordinary grant of regulatory authority.''
West Virginia involved the ``major questions doctrine,'' or ``cases in
which the `history and breadth of the authority that [the agency] has
asserted' and the `economic and political significance' of that
assertion, provide a `reason to hesitate before concluding that
Congress' meant to confer such authority.'' Id. at 721. The Court found
that EPA's interpretation of a statute would ``substantially
restructure the American energy market.'' Id. at 724. Having the same
regulated community report to their local fire safety authority the
same information they provide upon initial storage every 12 months and
when they cease storing the materials does not approach a ``major
question'' or a ``substantial[ ] restructure'' of anything.
ATF disagrees that it lacks the legal authority to promulgate this
rule as proposed and finalized. 18 U.S.C. 847 authorizes the Attorney
General to prescribe rules and regulations that are reasonably
necessary to carry out the provisions of Title XI of the OCCA, 18
U.S.C. chapter 40. Congress enacted chapter 40, which tasks the
Attorney General with the responsibility, delegated to ATF, for
investigating and enforcing criminal and regulatory violations of
federal explosives laws. 28 U.S.C. 599A; 28 CFR 0.130(a)(1). The OCCA,
as amended by the Safe Explosives Act (``SEA''), regulates explosives
as defined, including safeguards for storing such explosives. As such,
the regulations set forth requirements that implement the federal
explosives laws, which include storing explosive materials regulated by
the agency. Further, the rule is directly within the agency's purview
as delegated by Congress and the Attorney General. Federal law makes it
unlawful for any person to store explosive materials in a manner not in
conformity with regulations promulgated by the Attorney General under
18 U.S.C. 842(j). This provision also states, in relevant part, that
``[i]n promulgating such regulations, the Attorney General shall take
into consideration the class, type, and quantity of explosive materials
to be stored, as well as the standards of safety and security
recognized in the explosives industry.'' The rule establishes certain
standards that are necessary for the safety and security of stored
explosive materials, as recommended by explosives industry members, and
is therefore consistent with the Department's and ATF's statutory
authority to implement section 842(j). It is also consistent with the
legislative purpose of the OCCA, which ``is to protect interstate and
foreign commerce against interference and interruption by reducing the
hazard to persons and property arising from misuse and unsafe or
insecure storage of explosive materials.'' OCCA sec. 1101.
3. Rule Is Unconstitutional
A significant number of commenters felt that the proposed rule was
unconstitutional, illegal, or infringed upon or violated individual
rights. The sections below discuss the specific parts of the
Constitution commenters believed the rule violated.
a. Violates the Second Amendment
Comments Received
Numerous commenters stated the proposed rule would infringe on the
Second Amendment's right to bear arms, with several describing it as a
``blatant'' violation of the Second Amendment or stating that it would
put a ``chokehold'' on their rights. One commenter stated that the
proposed rule would have too broad of an application because it was not
limited to businesses and individuals who hold explosive licenses, and
it was therefore a dystopian abandonment of the Second Amendment. Many
commenters likened the proposed rule to actions taken by British
soldiers that the commenters stated initiated the American
Revolutionary War by attempting to control possession of gunpowder. One
commenter stated that the proposed rule was a direct attack on Second
Amendment rights and had nothing to do with public safety. Another
commenter stated that anyone violating the proposed rule would likely
be stripped of their Second Amendment rights.
Additionally, many commenters supported the contention that the
proposed rule violated the Second Amendment by pointing to Supreme
Court cases, particularly New York State Rifle and Pistol Association
v. Bruen, 597 U.S. 1 (2022), because, they stated, the proposed rule
did not meet the text, history, and tradition test established by that
case. One commenter stated that, per their interpretation of the Bruen
decision, all gun laws are unconstitutional.
Several commenters raised more specific concerns that the rule
infringed on their rights in relation to personal ammunition and
firearms. Some of these commenters expressed concern because, they
stated, the proposed rule applied to ammunition and gun powder, and
they expressed that the proposed notice requirement would violate their
Second Amendment protections. Another commenter stated that people have
the right to make their own ammunition, and it has been that way since
1791. Some commenters believed the proposed rule was a push to limit or
take away the ability to own and fire guns or characterized it as
illegal gun control, while another commenter asked if they would be
subject to the proposed rule for having deer hunting ammunition, and
another believed having a single bullet would require reporting to the
fire department.
ATF Response
ATF disagrees with commenters that the rule would regulate
possessing or using firearms and ammunition or that it would violate
the Second Amendment. The rule continues to apply only to explosive
materials that are subject to ATF regulations. Contrary to concerns
raised by commenters, that does not include firearms, commercially
manufactured black powder in quantities not to exceed 50 pounds, or
small-arms ammunition. In addition, the rule does not apply to or
restrict possessing or using firearms and ammunition. See 18 U.S.C.
845(a); 27 CFR 555.141.
The Second Amendment recognizes an individual's right to keep and
bear arms in common use for lawful purposes. District of Columbia v.
Heller, 554 U.S. 570, 595, 625 (2008); Bruen, 597 U.S. at 17. The rule,
however, does not regulate such arms. Heller, 554 U.S. at 625. Instead,
it implements 18 U.S.C. 842(j), which requires any person to store
explosive materials in a manner that conforms with regulations
prescribed by the Attorney General. Federal law defines the term
``explosive materials'' to mean ``explosives, blasting agents, and
detonators,'' 18 U.S.C. 841(c), and the term ``explosives'' to mean, in
relevant part, ``any chemical compound mixture, or device, the primary
or common purpose of which is to function by explosion; the term
includes, but is not limited to, dynamite and other high explosives,
black powder, pellet powder, initiating explosives, detonators, safety
fuses, squibs, detonating cord, igniter cord, and igniters,'' id.
841(d).
ATF also acknowledges that the Second Amendment right to keep and
bear arms ``implicitly protect[s] those closely related acts necessary
to'' the right's exercise. Luis v. United States, 578 U.S. 5, 26 (2016)
(Thomas, J., concurring in judgment). But the rule
[[Page 60809]]
specifically exempts ``small arms ammunition and components of small
arms ammunition,'' 27 CFR 555.141(a)(4), including ``cartridge cases,
primers, bullets, or smokeless propellants designed for use in small
arms, including percussion caps, and 3/32 inch and other external
burning pyrotechnic hobby fuses,'' id. 555.11. The rule likewise
exempts ``commercially manufactured black powder in quantities not to
exceed 50 pounds, percussion caps, safety and pyrotechnic fuses,
quills, quick and slow matches, and friction primers, if the black
powder is intended to be used solely for sporting, recreational, or
cultural purposes in antique firearms as defined in 18 U.S.C.
921(a)(16), or antique devices as exempted from the term ``destructive
device'' in 18 U.S.C. 921(a)(4). Id. 555.141(b).
Even if the rule were interpreted as sweeping in some conduct
covered by the Second Amendment's ancillary protections, the rule ``is
consistent with the Nation's historical tradition of firearm
regulation,'' Bruen, 597 U.S. at 684-85. Indeed, the nation has a long
history of fire-safety laws regulating storing explosive materials such
as gunpowder. See, e.g., Heller, 554 U.S. at 631-32. As a result, this
rule does not violate the Second Amendment or interfere with people's
ability to possess or use arms in common use for lawful purposes.
b. Violates the First, Fourth, and Fifth Amendments
Comments Received
Some commenters specified that the proposed rule would constitute
an infringement on privacy protected by the First Amendment but did not
elaborate on these statements.
A significant number of commenters opposed the proposed rule on
grounds that it would circumvent and violate constitutional rights
granted under the Fourth Amendment, constitute an intrusion, and would
violate individual privacy. Multiple commenters expressed concerns that
the proposed rule was clearly a means to search another's property
without a warrant, and others that the rule would subject them to
illegal search and seizure, a violation of Fourth Amendment protections
against unreasonable searches and seizures. More specifically, one
commenter stated the proposed rule was an attempt to provide authority
to conduct warrantless searches by mandating registration, while other
commenters believed the proposed rule would create a registry of
personal property, which they stated would be unconstitutional as a
random search or inspection without a warrant. Other commenters stated
that the proposed rule would enable ATF to inspect or search private
residences, check anyone's house or storage if they submitted the
proposed notification, or go to their home and ask to see their
gunpowder, violating the Fourth Amendment by conducting such searches.
Multiple commenters stated it is not the government's business to know
how much gunpowder or other materials individuals legally own or store
on their private property. A commenter believed ATF was proposing the
rule because the agency wants to go into homes to inspect ammunition
and know where it is stored.
Many commenters believed the proposed rule would violate the Fifth
Amendment's right against self-incrimination. One commenter more
specifically stated that the rule would violate the Fifth Amendment
because it would require ``mandatory self-reporting for small amounts
of privately owned black powder or smokeless powder and the ability to
inspect at any time.''
ATF Response
ATF disagrees with the commenters' First Amendment objections. This
rule does not regulate speech. Moreover, storing explosive materials is
not expressive conduct. Even if somehow considered expressive conduct,
this rule does not target that expressive activity. The First Amendment
is therefore not implicated. See Arcara v. Cloud Books, Inc., 478 U.S.
697, 707 (1986) (First Amendment scrutiny ``has no relevance to a
statute directed at . . . non-expressive activity.''); see also Wright
v. City of St. Petersburg, 833 F.3d 1291, 1298 (11th Cir. 2016)
(``First Amendment scrutiny `ha[d] no relevance to [a trespass
ordinance] directed at imposing sanctions on nonexpressive activity.'
''); cf. Talk of the Town v. Dep't of Fin. & Bus. Servs. ex rel. Las
Vegas, 343 F.3d 1063, 1069 (9th Cir. 2003) (holding that a section of
the Las Vegas Code barring consumption of alcohol in places that lack
valid liquor licenses ``in no way can be said to regulate conduct
containing an element of protected expression''). Conduct may be
expressive where ``[a]n intent to convey a particularized message [is]
present, and . . . the likelihood [is] great that the message would be
understood by those who viewed it.'' Texas v. Johnson, 491 U.S. 397,
404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974)).
The rule would not regulate conduct that intends to convey any
particularized message, and the commenters have not offered any valid
reason to believe that storing explosives constitutes expressive
conduct. As such, the First Amendment does not apply to the generally
applicable regulatory requirement to annually submit a notice about
stored explosives to the local fire safety authority.
ATF also disagrees that the rule violates the Fourth Amendment or
any constitutional right to privacy. ``The United States Constitution
does not expressly guarantee a right to privacy, but the Supreme Court
has held that a right to privacy does exist within the liberty
component of the Fourteenth Amendment.'' See Padgett v. Donald, 401
F.3d 1273, 1280 (11th Cir. 2005). Courts have recognized a privacy
interest in avoiding disclosure of certain personal matters. See id.
``[N]ot all disclosures of private information will trigger
constitutional protection.'' Doe No. 1 v. Putnam County, 344 F. Supp.
3d 518, 540 (S.D.N.Y. 2018) (finding courts have found a right to
privacy in a ``limited set of factual circumstances'' involving one's
personal financial or medical information, i.e., information of a
``highly personal nature''). Information regarding stored explosives is
of neither the medical nor financial variety, is not of a ``highly
personal nature,'' and no court has found this information to be
constitutionally protected.
ATF further disagrees that the rule would result in a warrantless
search or seizure in violation of the Fourth Amendment. The rule
narrowly applies to storing explosive materials covered by ATF
regulations in 27 CFR part 555. Because explosive materials may legally
be distributed only to federal explosives licensees/permittees, persons
storing explosive materials regulated by ATF will generally hold a
federal explosives license/permit. Explosives licensees/permittees are
aware that ATF may enter places where explosive materials are stored to
inspect or examine required records or documents, and facilities in
which explosives are stored, under 18 U.S.C. 843(f) and 27 CFR 555.24.
There is no reasonable expectation of privacy in the information
contained in those records. 18 U.S.C. 842(j) makes it unlawful for any
person to store explosive materials in a manner not in conformity with
ATF regulations, and ATF regulations already require all persons who
have regulated explosives to comply with the storage requirements in
part 555, subpart K.
For those persons storing explosive materials who do not hold a
federal license/permit, the requirement is merely a requirement to
report the
[[Page 60810]]
presence of explosives for local fire safety purposes and retain the
records so the person can verify they have met the notice requirement
if asked, in conformity with 18 U.S.C. 842(j). Warrantless searches of
property protected by the Fourth Amendment are per se unreasonable
subject only to a few specifically and well-delineated exceptions. See
Kentucky v. King, 563 U.S. 452, 459 (2011); United States v. Reedy, 989
F.3d 548 (7th Cir. 2021); United States v. Rollins, 190 Fed. Appx. 739
(2006). In addition, the rule, like every other regulation in 27 CFR
part 555, would not apply to small-arms ammunition or components, or to
commercially manufactured black powder in quantities not exceeding 50
pounds (as well as percussion caps, safety and pyrotechnic fuses,
quills, quick and slow matches, and friction primers) intended to be
used solely for sporting, recreational, or cultural purposes in antique
firearms as defined in 18 U.S.C. 921(a)(16) or in antique devices
exempted from the term ``destructive device'' in 18 U.S.C. 921(a)(4),
as they are exempt from the provisions of 27 CFR part 555 pursuant to
18 U.S.C. 845(a)(4) and (5) and 27 CFR 555.141(a)(4) and (b).
ATF acknowledges that the language in the proposed rule, which
states that the individual must make ``each written notification . . .
available for examination or inspection by an ATF officer at all
reasonable times'' may lead to the incorrect conclusion that ATF may
enter the premises of individuals who do not hold a federal license/
permit without a warrant for inspection purposes. Out of an abundance
of caution, ATF is therefore removing that language from the final rule
text.
ATF disagrees that the rule would violate the Fifth Amendment right
against self-incrimination. The Fifth Amendment protects against
disclosures that could be used against a person in a later criminal
prosecution. However, the rule would require annual reports about
stored explosives, which is a regulatory issue, not a criminal one. See
United States v. Spiezio, 523 F. Supp. 264, 269 (E.D. Pa. 1981)
(holding that 18 U.S.C. 842(f), which requires licensees to report
information on persons to whom explosive materials are distributed, did
not compel defendants to incriminate themselves in violation of their
rights under U.S. Const. amend. V, cl. 3, in that the privilege under
Const. amend. V, cl. 3 is not violated by reporting requirements of a
regulatory nature that apply to lawful activities, and explosives are
not inherently criminal, but are inherently dangerous so that Congress
had a legitimate aim in controlling explosives); see also United States
v. Bouknight, 493 U.S. 549, 556 (1990) (``The Court has on several
occasions recognized that the Fifth Amendment privilege may not be
invoked to resist compliance with a regulatory regime constructed to
effect the State's public purposes unrelated to the enforcement of its
criminal laws.''); United States v. Wilson, 98 F.4th 1204, 1225 (10th
Cir. 2024) (holding where a statutory or regulatory scheme requiring
records to be kept is not aimed primarily at criminal activities, or at
groups inherently suspect of criminal activities, and is ``constructed
to effect the State's public purposes unrelated to the enforcement of
its criminal laws,'' no Fifth Amendment protection applies).
The rule is aimed at annual reporting on stored explosive materials
to appropriate officials for fire officials' safety. The rule is not
intended to target or investigate criminal activity, nor is it directed
at any person suspected of criminal activity. Because the rule is
regulatory in nature, the Fifth Amendment is not implicated, and
therefore does not apply.
c. Violates the Ninth, Tenth, and Fourteenth Amendments
Comments Received
One commenter also stated the rule would violate the Ninth
Amendment but did not add an explanation.
A small number of commenters expressed concerns that the proposed
rule violated the Tenth Amendment. One commenter advised that, per the
Tenth Amendment, any rights not given to the federal government are
given to the states, which they said means that any regulation of
explosive materials storage should be handled at the local, not the
federal, level. Another commenter made the same statement about
regulating personal gunpowder storage.
Several commenters stated that the proposed rule would violate the
Fourteenth Amendment. One commenter stated that implementing the
proposed rule would violate the Fourteenth Amendment by targeting and
criminalizing those who reload ammunition and store materials to do so,
if they fail to report their stores. Another commenter stated that, if
any exemptions for police or other organizations are added to the rule,
it would violate the equal application of law clause of the Fourteenth
Amendment. One commenter stated that the proposed rule would deprive
them of rights under the color of law. Two commenters expressed concern
that the proposed rule would violate their right to privacy.
ATF Response
One commenter stated the proposed rule would violate the Ninth
Amendment, which states, ``[t]he enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage others
retained by the people.'' U.S. Const. amend. IX. This commenter did not
explain how they thought the proposed rule violated this constitutional
provision.
ATF disagrees that the rule violates the Ninth Amendment. Rather
than enunciating a particular affirmative right, the Ninth Amendment
serves to protect other fundamental rights that are not set forth in
the Constitution. Charles v. Brown, 495 F. Supp. 862, 863 (N.D. Ala.
1980). Some unenumerated rights may be of constitutional magnitude, but
only by virtue of other amendments, such as the Fifth or Fourteenth
Amendment. Id. at 864. A person cannot claim a right that exists solely
under the Ninth Amendment. Id. at 864. Cf. Dobbs v. Jackson Women's
Health Org., 597 U.S. 215, 231 (2022) (holding the Due Process Clause
of both the Fifth and Fourteenth Amendments only protect rights that
are ``deeply rooted in this Nation's history and tradition'' and
``implicit in the concept of ordered liberty.'').
ATF does not believe that an annual reporting requirement, designed
to ensure the safety of emergency response personnel, denies any
unenumerated right that is ``deeply rooted in this Nation's history and
tradition'' or ``implicit in the concept of ordered liberty'' protected
under the Ninth Amendment or under any other constitutional amendment.
Dobbs, 597 U.S. at 231; see also United States v. Kuehnoel,187 F.3d 649
(9th Cir. 1999) (the defendant was convicted of possessing a pipe bomb
and argued the conviction was in violation of his Ninth Amendment
rights; the Court disagreed, ``[w]e have observed that the Ninth
Amendment `has not been interpreted as independently securing any
constitutional rights.' ''); accord United States v. Broussard, 80 F.3d
1025, 1041 (5th Cir.), cert. denied, 519 U.S. 906 (1996). No
fundamental right would be infringed upon or denied as a result of the
rule; therefore, the Ninth Amendment is inapplicable.
ATF disagrees that the rule violates the Tenth Amendment.
Commenters correctly stated that the Tenth Amendment reserves to the
states rights not given to the federal government. However, they were
incorrect in their conclusion that therefore, regulating
[[Page 60811]]
explosive materials should be reserved for the states. The Commerce
Clause of the Constitution, art. 1, Sec. 8, cl. 3, states that
``Congress shall have the Power . . . to regulate Commerce . . . among
the several States . . . .'' Therefore, when Congress acts within its
power under the Commerce Clause, ``the Tenth Amendment expressly
disclaims any reservation of that power to the States.'' See New York
v. United States, 505 U.S. 144, 156 (1992).
Simply put, a valid exercise of Congress' power as delegated to it
by the commerce clause is not a violation of the Tenth Amendment.
Multiple courts have repeatedly and consistently upheld the federal
explosives laws as a valid exercise of Congress' power to regulate
commerce. See, e.g., United States v. Joos, 638 F.3d 581, 586 (8th Cir.
2011) (holding that 18 U.S.C. 842(i), which prohibits a felon from
possessing any explosive, fell within Congress's power under the
Commerce Clause); United States v. Folen, 84 F.3d 1103, 1104 (8th Cir.
1996) (holding that making possession of explosives unlawful based on
connection to commerce is within Congress' power under the Commerce
Clause); see also United States v. Disney, 62 M.J. 46, 49 (C.A.A.F.
2005) (holding that storing stolen explosives had a direct substantial
impact on commerce); United States v. Dawson, 467 F.2d 668, 673 (8th
Cir. 1972) (holding that receiving, transporting, selling, or storing
explosives is an activity that affects commerce); see also United
States v. Grimes, 142 F.3d 1342 (11th Cir.1998) (holding argument that
18 U.S.C. 844(i) is facially unconstitutional is without merit).
ATF also disagrees with the commenter who stated the proposed rule
would violate the Fourteenth Amendment by targeting and criminalizing
those who reload ammunition and store materials. As previously
discussed, the rule would not apply to small-arms ammunition and
components thereof, or to commercially manufactured black powder in
quantities not exceeding 50 pounds (as well as percussion caps, safety
and pyrotechnic fuses, quills, quick and slow matches, and friction
primers) intended to be used solely for sporting, recreational, or
cultural purposes in antique firearms as defined in 18 U.S.C.
921(a)(16) or in antique devices exempted from the term ``destructive
device'' in 18 U.S.C. 921(a)(4). See 18 U.S.C. 845(a)(4) and (a)(5).
Ammunition reloaders fall into this exception and thus would not be
impacted by the rule. But in addition, the Fourteenth Amendment's Due
Process Clause does not apply to federal action and is therefore not
applicable to this rule, as explained more below.
ATF disagrees that the rule would violate the Fourteenth Amendment
because it would deprive individuals of their rights under the color of
law. The Fourteenth Amendment provides that ``No State shall make or
enforce any law which shall abridge the privileges or immunities of
citizens of the United States.'' U.S. Const. amend. XIV. The rule does
not operate under the color of state law; it is based on federal
explosives law under 18 U.S.C. chapter 40, and therefore the Fourteenth
Amendment is simply not applicable.
ATF disagrees that any exemption added to this rule to exempt
police or other organizations would violate the ``equal application of
the law'' clause of the Fourteenth Amendment. ATF is unable to address
the commenter who mentioned a hypothetical exemption for police or
other organizations in the proposed rule and alleged that it violates
the Fourteenth Amendment. Although 18 U.S.C. 845 enumerates specific
provisions and exceptions to certain federal explosives laws, it is not
clear what exception the commenter references or what type of
hypothetical exception the commenter envisions that would violate the
Fourteenth Amendment. However, the commenter's argument that this rule
violates the Equal Protection Clause of the Fourteenth Amendment is
meritless. The Equal Protection Clause forbids only intentional
discrimination. McCleskey v. Kemp, 481 U.S. 279, 292 (1987); Horner v.
Ky. High Sch. Athletic Ass'n, 43 F.3d 265, 276 (6th Cir. 1994). Even if
``a neutral law has a disproportionately adverse effect . . . it is
unconstitutional under the Equal Protection Clause only if that impact
can be traced to a discriminatory purpose.'' Personnel Administrator of
Mass. v. Feeney, 442 U.S. 256, 272 (1979); see also Soto v. Flores, 103
F.3d 1056, 1067 (1st Cir. 1997) (``It is a truism that under Equal
Protection Clause jurisprudence, a showing of disproportionate impact
alone is not enough to establish a constitutional violation.'').
``Discriminatory intent'' requires that the ``decisionmaker selected or
reaffirmed a particular course of action at least in part `because of,'
not merely `in spite of' the law's differential treatment of a
particular class of persons.'' SECSYS, LLC v. Vigil, 666 F.3d 678, 685
(10th Cir. 2012) (Gorsuch, J.) (alteration and some quotation marks
omitted) (citing Feeney, 442 U.S. at 279). Consequently, ``when the law
under review is generally applicable to all persons, no presumption of
intentional discrimination arises; proof is required. This is so
because many laws, perhaps most and often unavoidably, affect some
groups of persons differently than others even though they involve no
intentional discrimination.'' Id. (emphasis in the original).
This rule is generally applicable to all persons who store
explosive materials as required by federal law. Nothing in this rule
creates discrete, objectively identifiable classifications which treat
similarly situated people differently based on a particular class of
persons. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 60
(1973) (Stewart, J., concurring); Tex. Entertainment Ass'n v. Hegar, 10
F.4th 495, 513 (5th Cir. 2021); Corey Airport Servs., Inc. v. Clear
Channel Outdoor, Inc., 682 F.3d 1293, 1296-97 (11th Cir. 2012). Because
the commenter did not identify a specific exception, it is unclear that
there is any disparate impact on a certain class of individuals; but
even if that impact existed, it would not be based on a discriminatory
purpose.
ATF disagrees with the two commenters who expressed concern that
the proposed rule would violate their right to privacy under the
Fourteenth Amendment for the same reasons previously discussed under
ATF's response to comments on the Fourth Amendment's right to privacy
earlier in this section of the preamble.
4. Improper Registry and Other Use or Loss of Reported Information
Comments Received
A significant number of commenters expressed general concerns that
the proposed rule was an attempt to collect data and create an illegal,
de facto, or back-door registry of lawful individuals storing reloading
materials, ammunition, and firearms. For example, one commenter stated
the proposed rule was a blatant attempt to create unofficial
registration of firearms, and another added that Congress has
explicitly barred ATF from creating a registry of firearm owners in the
Firearm Owners Protection Act. Another commenter expressed concern that
any executive administration, standing army, or foreign power which
sought to disarm and rule the American people, would need only obtain
reports generated under this proposed rule to have the information they
needed. One commenter stated the collected information could easily be
added to ``ATF's firearm ownership database,'' while another added that
mandatory gun registries have historically led to confiscation
measures.
[[Page 60812]]
Many commenters stated that, if the proposed rule was really based
on safety concerns, local fire departments would be requesting this
information themselves; therefore, they stated, the reason for the
proposed rule was to create ``another unconstitutional registry'' that
could be used against good citizens of this country. One commenter
specified that they would support the rule for safety purposes if it
was initiated by the local fire department rather than ATF and if they
knew the information would not be transferred to ATF.
Some commenters raised concerns specifically about the use of local
reporting as a subterfuge to create an illegal federal registry. One
such commenter stated that the proposed rule was a tactic to get around
the federal prohibition against a national gun registry by allowing
local agencies to maintain such a registry. This same commenter added
that the federal government could demand copies of these local
registries. Another commenter stated that this rule could use local
firefighters to spy on what lawful citizens own in the name of safety.
Other commenters added that history has shown that the government can
use a registry to disarm citizens even if the citizens are only
reporting to local fire departments or police departments.
A significant number of commenters expressed concerns that the
reporting requirement was particularly directed at gaining information
to use to confiscate ammunition, gunpowder, and other explosive
materials persons use to make ammunition. A number of commenters
stated, for example, that the information collected under the proposed
rule would be used not only for registration, but as a subterfuge for
monitoring and confiscating gunpowder, ammunition, and firearms, and to
incarcerate innocent people as a result. Another set of commenters
similarly stated the proposed rule would create a registry of
ammunition reloaders in order to track and find out where people keep
gunpowder. A couple of commenters stated the proposed rule would
provide ATF with a continuously updated registry of everyone that
reloads their own ammunition or of reloading components in the guise of
first responder safety, while another commenter described it as
``fishing'' for data on individual reloaders, and others believed the
ultimate goal of the reporting requirements was to suppress ordinary
citizens from engaging in this activity, or to adversely impact them
for engaging in activities protected under the Constitution. One
commenter said the rule was designed to keep any form of explosives or
propellants from law-abiding citizens. Another commenter warned the
information could be used to arbitrarily set a limit on how much
material used to make ammunition someone can store. One of these
commenters also added that storing ammunition and gunpowder safely has
never been a problem in this country, so the rule was clearly intended
to target ammunition-making materials. Another commenter similarly
stated that there are ``no significant issues related to powder
storage,'' and that there are ``already tools in place, such as
receiving a warrant, for problematic individuals.''
Many commenters expressed concerns about how the reported
information could subsequently be misused. For example, many considered
the proposed rule to be a means of collecting information to create a
paper trail on legally purchased items. Others expressed concerns that
local authorities would share the reported information with law
enforcement, insurance companies, etc., or that the purpose of the
proposed rule was to leak individual names and addresses on the
internet.
On a related topic, commenters were concerned about how secure the
information would be. For example, one commenter said gathering this
kind of information would increase the chances of a data breach or data
leak, and another commenter asked what would be done if these records
were hacked. Another commenter asked how fire departments would be
expected to track this information and keep it secure, while another
commenter asked who would pay for data storage and security of the
reports.
ATF Response
The rule does not address, nor does it require, notification of
firearms storage. The rule applies only to storing explosive materials
that are already subject to ATF's explosives regulatory authority. It
does not apply to explosive materials that are specifically exempt from
ATF's regulations, which include small-arms ammunition and components
thereof, and commercially manufactured black powder in quantities not
exceeding 50 pounds (as well as percussion caps, safety and pyrotechnic
fuses, quills, quick and slow matches, and friction primers) intended
to be used solely for sporting, recreational, or cultural purposes in
antique firearms as defined in 18 U.S.C. 921(a)(16) or in antique
devices exempted from the term ``destructive device'' in 18 U.S.C.
921(a)(4). See 18 U.S.C. 845.
Additionally, the rule would not create a registry of explosives
storage locations, or any other kind of registry for federal, state or
local officials to access. The rule would require that all persons
storing non-exempt explosives, who are already required to provide
reports to local authorities when they begin storing non-exempt
explosives, must also notify their local fire authority every 12 months
thereafter if they continue to store explosive materials and when they
cease storing the explosives, and must retain a copy of such written
notification for five years as proof of compliance.
Under the existing requirement to report the same information when
beginning to store the covered explosives, local authorities have not
shared this information with the ATF. To the best of ATF's knowledge,
local authorities have also not shared this information with other
persons or entities, like insurance companies. Local authorities are
likely to share information on explosives with other officials to the
extent necessary to address a fire-related situation, but there have
been no issues with information being otherwise shared, and ATF has no
reason to believe that would change with the additional notifications
under this rule. Neither ATF nor local authorities have made a
registry, particularly at a national level. There have also been no
concerns raised by local authorities to ATF that their information
would be hacked, or other similar scenarios raised in the public
comments. As a result, ATF does not anticipate any of these concerns to
be an issue arising from the additional annual reporting of the same
information under the rule.
5. Lack of Clarity
Comments Received
Numerous commenters opposed the proposed reporting requirement
because they stated the rule was vague, unclear, or overbroad. A number
of commenters stated generally that the proposed rule was written too
broadly, which could lead to varied interpretation and abuse. One
commenter said the proposed rule was intended to be broad so it could
be used for surveillance purposes to erode the rights of law-abiding
citizens. In a similar vein, a number of other commenters stated the
proposed rule was too vague, and one added that the terms could
potentially be redefined over time. One commenter said the rule was
extremely inconsistent, and another
[[Page 60813]]
commenter stated that the rule was not thought out.
Some commenters provided more specific information on ways in which
they felt the rule was too vague. For example, a few commenters
expressed that this rule should not be considered because it does not
define what is an explosive or explosive material. Another commenter
stressed that the proposed rule was a solution in search of a problem
and did not include details on how local fire departments would track
this information in such a way as to not create a database of gun
owners.
In addition, a number of commenters considered the proposed rule
too vague because it did not specify what kinds of explosive materials
would have to be reported. Numerous commenters stated the proposed rule
did not define the types of explosives, define or name specific
explosive materials, or the quantity that would have to be reported.
Another commenter added that the proposed rule did not define how much
explosive material would qualify as a hazard. Other commenters stressed
that the proposed rule as written could apply to anything from
hairspray, gasoline, fertilizers, to ammunition storage. One commenter
added that many other household items could be considered an explosive,
and if these items are required to be reported, the reporting process
would be complicated and could overwhelm the system. And one commenter
noted that ``the broad term of explosive material would [a]ffect every
household in the United States,'' subjecting them to ``extreme
recordkeeping requirements.'' Another commenter asked whether the
proposed rule would subject ``someone buying fireworks for the Fourth
of July or New Years'' to the reporting requirements or ``someone who
reloads or stocks ammunition'' in their home because they hunt or are
involved in shooting sports.
Some commenters stated that the proposed rule was too broad with
respect to single-, double-, and triple-based gunpowder/propellants
used by many Americans. A couple of commenters stressed that this rule
could create massive issues for the public because no one would know
the specific amount of powder that must be reported, thus causing
people to inadvertently break the law.
Some commenters considered the rule too vague because they said it
did not identify the penalty for failing to report explosives storage.
One commenter stated the rule was unclear about specifics on how to
report and to whom they should submit the report. Some commenters
considered the proposed rule to be too ambiguous about who would have
to report explosives storage. Several commenters stated the Department
needs to clarify whether the rule applies to permittees, licensees, or
``any person'' because, they emphasized, there is a huge difference
between these groups. One commenter added that if the number applies to
``any person,'' the estimated affected population number of 9,674,
mentioned in the economic analysis part of the rule, was underestimated
and objectionable. This commenter also stated that the Department also
did not clarify whether the reporting requirement would apply to
businesses or large entities that would be able to handle this
requirement.
ATF Response
ATF disagrees that the rule is too vague. Although the specific
paragraph that would be revised by the rule does not explain which
explosive materials are covered by the rule, that is because those
details are explained in other provisions in the same regulation. The
paragraph proposed for revision is not meant to be read alone; it is
part of a larger set of regulatory provisions. The regulations also
explain that the reporting requirements are applicable only to
explosive materials that are subject to ATF's explosives regulations in
27 CFR part 555. Additionally, there is an annual Federal Register
notice, which identifies the kinds of explosives covered by the
regulations. ATF acknowledges that some people may not be familiar with
the rest of the explosives regulations and is providing further detail
in these comment responses and elsewhere in the preamble to address
that concern. However, ATF does not think that the regulation paragraph
proposed for revision needs to be further revised to cross-reference
regulations in the same part 555.
Regarding comments specifically about who would be required to
report, the paragraph proposed for revision, Sec. 555.201(f), clearly
states at the beginning that it applies to ``any person'' who stores
explosive materials. As a result, ATF does not agree with commenters
who expressed that it was unclear as to whom the reporting requirement
applies. It applies to all persons who store explosive materials
covered by ATF explosives regulations. Persons who would be subject to
the rule's annual reporting requirement are already subject to the
existing initial reporting requirement in the current regulatory
provision and should already be aware that they must notify the local
fire authority when they begin storing explosives, or begin storing
them in a new magazine. The rule does not change who must report on
explosives storage, only how often. With regard to comments about
penalties for failing to report as required by this rule, 18 U.S.C.
chapter 40 provides the penalties for noncompliance with the storage
requirements prescribed by the Attorney General. 18 U.S.C. 842(j)
states in relevant part that ``[i]t shall be unlawful for any person to
store any explosive material in a manner not in conformity with
regulations promulgated by the Attorney General.'' The rulemaking
merely requires individuals to comply with notification requirements
for storing explosives. Failure to comply with this provision is a
violation of section 842(j). A person who violates section 842(j) is
subject to a fine or imprisonment of not more than a year. 18 U.S.C.
844(b).
With regard to comments about the kinds of explosives the rule
might include, several earlier ATF responses in section III.B of this
preamble address this topic. However, to clarify in the context of
these comments on vagueness, the annual notice requirement proposed in
Sec. 555.201(f) applies only to explosive materials that are subject
to ATF regulations. ATF also annually publishes in the Federal Register
a list of explosive materials that are subject to ATF's explosives
regulations.\9\ The rule would not expand the types or classes of
explosive materials that are subject to ATF's explosives regulations.
Explosive materials that are specifically exempt from ATF's explosives
regulations, such as consumer fireworks, small-arms ammunition,
components of small-arms ammunition (e.g., primers, propellants), and
commercially manufactured black powder (in quantities not exceeding 50
pounds and intended to be used solely for recreational, sporting, or
cultural purposes in antique firearms), are not subject to the proposed
notice requirements. See 18 U.S.C. 845 and the 2025 Annual List of
Explosive Materials, 90 FR 25077 (June 13, 2025). See also discussion
in the ATF response under sections III.B.1 and 7 of this preamble.
---------------------------------------------------------------------------
\9\ See, e.g., 2025 Annual List of Explosive Materials, 90 FR
25077 (Jun. 13, 2025); 2024 Annual List of Explosive Materials, 89
FR 67672 (Aug. 21, 2024).
---------------------------------------------------------------------------
The household items mentioned as examples in several of the
comments would also not be subject to ATF regulations or the proposed
annual notice requirement because they are not considered explosive
materials under federal explosives laws. This
[[Page 60814]]
information is already contained elsewhere in ATF regulations in 27 CFR
part 555 (as well as 18 U.S.C. chapter 40), and the list published in
the Federal Register. Therefore, ATF does not think it is necessary to
repeat that detail or include a cross-reference to the relevant
sections of the same part, in the paragraph in which the proposed
revision to the notice requirement would occur. Nonetheless, ATF has
added a clarifying phrase to address the scope more directly in that
paragraph. This final rule therefore adds the phrase ``covered by this
part'' to the first sentence, so it will read, ``Any person who stores
explosive materials covered by this part must notify . . . .''
6. Effect on Law-Abiding Citizens
Comments Received
Numerous commenters believed that the only purpose for the proposed
rule was to illegally or inappropriately pursue, track, or watch law-
abiding gun owners, people who store gunpowder, or people the
government considers to be a threat or problem. A number of commenters
asserted that the proposed notice requirement constitutes harassment of
law-abiding citizens and gun owners or was purposely designed to hurt
and harass them. One commenter said they respected the public safety
point of the rule, but they also thought the rule was preposterous
because it targeted law-abiding taxpayers who own firearms. A number of
commenters stated that the proposed rule was nothing but a way to
control the livelihood of private citizens who have not broken any
laws.
Other commenters considered the rule to be an intrusion into the
homes of private citizens without a warrant. Several recommended that
ATF ``stay in their lane and stop intruding on law[-]abiding citizens,
and stay out of their homes''; that people have the right to purchase
and store explosives wherever they choose as long as it is done safely.
A number of commenters more specifically stated that ATF does not need
to know who has gunpowder, and the local fire department does not need
to know unless there is a fire.
Another commenter stated that the proposed rule was a way for the
Department and ATF ``to keep their thumb on shooting sports
enthusiasts.''
In part because the proposed rule mentioned the OCCA, a number of
commenters believed the proposed rule would cause law-abiding citizens
who store gunpowder in their homes to be treated as, labeled, or made
into criminals. Other commenters stated the proposed rule could
potentially criminalize legal citizens who unknowingly have explosive
materials in their homes and could potentially cause millions of
Americans who would not even be aware that the proposed notice
requirement occurred to be subject to criminal penalties. Some
commenters stated that the proposed rule was aimed at targeting law-
abiding citizens even more than actual criminals or dangerous people of
interest. And another commenter said the Department should stop
pursuing law-abiding citizens who are defending themselves and focus on
drug cartels and criminals with ``Glock switches.''
Numerous commenters asserted that many commenters would not comply
with this rule because it was inappropriately impacting law-abiding
citizens. One commenter asked why gunpowder is just now being
considered for safety purposes since it has been in existence for
centuries.
ATF Response
ATF disagrees that the rule will have an increased negative impact
on law-abiding citizens. First, the rule does not impact firearms. It
applies only to explosive materials covered by ATF regulations in part
555, which does not include standard household items like those
mentioned by commenters. More specifically, the rule would not apply to
explosive materials that are expressly exempt from ATF's explosives
regulations, such as consumer fireworks, small-arms ammunition, and
components of small-arms ammunition (e.g., primers, propellant). In
addition, the exempt explosive materials include commercially
manufactured black powder in quantities not exceeding 50 pounds (as
well as percussion caps, safety and pyrotechnic fuses, quills, quick
and slow matches, and friction primers) intended to be used solely for
sporting, recreational, or cultural purposes in antique firearms as
defined in 18 U.S.C. 921(a)(16) or in antique devices exempted from the
term ``destructive device'' in 18 U.S.C. 921(a)(4). See 18 U.S.C.
845;2025 Annual List of Explosive Materials, 90 FR 25077 (June 13,
2025); see also discussion in the ATF response under sections III.B.1
and 7 of this preamble.
Second, the rule would not affect persons who would not already be
required to comply with ATF's explosives storage requirements at 27 CFR
part 555, subpart K. Persons subject to the rule are already subject to
the current notice requirement and should be aware that they must
notify the local fire authority if they begin storing explosives or
acquire a new magazine. If they have been complying with the existing
requirement, they would be law-abiding citizens in this context. While
they would be impacted by the proposed additional notice frequency, as
described in response to comments under section III.B.1, ATF believes
the impact would be minimal.
However, citizens who should have notified local authorities of
their explosives storage under the existing regulatory provision, but
did not do so when they began storing their explosives, are already in
violation of the existing notice requirement. The rule would increase
how often a person must notify but would not change who must notify,
the kinds of explosives that are covered, or what information must be
reported. It also would not cause persons to be in violation of
existing requirements. Persons who are violating the existing notice
requirement but who comply with the proposed notice requirement would
be impacted more by the rule than persons who are already complying
with existing reporting requirements. This is because they would have
to submit their first notice and determine who the local authorities
are in response to the rule. But even so, the marginal impact of the
proposed notice requirement would still be small; most of the impact
would stem from complying with existing requirements in the first
instance.
ATF notes that the statute under 18 U.S.C. chapter 40 sets forth
the penalty for failing to store explosives in compliance with the
regulations as prescribed by the Attorney General. Persons who possess
explosive materials that are already subject to ATF regulations are
aware that they must comply with regulatory requirements, and that
failure to comply with those regulatory requirements could result in a
criminal penalty, particularly when storing explosives. 18 U.S.C.
842(j) makes it ``unlawful for any person to store any explosive
material in a manner not in conformity with regulations promulgated by
the Attorney General.'' A violation of 18 U.S.C. 842(j) constitutes a
misdemeanor offense under section 844(b) of the statute. These
statutory penalties remain unchanged, and the proposed annual notice
requirement would not create any new or additional criminal penalties.
It affects a regulatory notice and would simply change the frequency of
notices for those possessing explosive materials subject to ATF
regulations.
Sections of ATF regulations typically do not cite the statutory
provision establishing the penalty. ATF generally does not include a
statement in other sections of its regulations of the criminal penalty
because the penalty is
[[Page 60815]]
statutorily established. Therefore, ATF does not feel it is necessary
to add such a statement to the paragraph being proposed for revision
because the criminal penalty is set forth in 18 U.S.C. chapter 40.
ATF disagrees that this rule will punish law-abiding citizens
storing gunpowder because the rule references the OCCA. The primary
federal statute regulating explosives and arson is the OCCA, Title XI,
as amended by the SEA, 18 U.S.C. chapter 40. One of the provisions of
the SEA provides safeguards for storing, handling, packaging, and
labeling explosives. As previously discussed, the rule does not apply
to explosive materials that are specifically exempt from ATF's
explosives regulations. See 18 U.S.C. 845 and the 2025 Annual List of
Explosive Materials, 90 FR 25077 (June 13, 2025). See also discussion
in the ATF response under sections III.B.1 and 7 of this preamble.
ATF disagrees that the rule could potentially criminalize citizens
who unknowingly have explosive materials in their home. 18 U.S.C.
842(j) requires that all persons must store explosive materials in
compliance with its requirements. The statute defines the term
explosive materials and explosives, and it requires the Attorney
General to report an annual list of explosives in the Federal Register.
See 90 FR 25077 (June 13, 2025) for the current list. This provides
law-abiding citizens with notice and knowledge of what explosives must
be stored in compliance with 18 U.S.C. 842(j), and thus what explosives
would be subject to the notification requirement in this rule.
ATF disagrees that the rule targets law-abiding citizens more than
criminals. As previously stated, all persons must store explosives in
accordance with federal law and corresponding regulations. It is
important that first responders are aware of explosives storage when
responding to a fire site so they can be prepared when taking action
that accounts for the explosives in an emergency response. This goal of
the rule is to improve safety for emergency responders and the public.
With regard to the commenters who stated that the proposed notice
requirement was designed and intended to harm and harass people, ATF
disagrees. The additional notice frequency would have minimal impact on
those who are required to submit notices. As the rule would not expand
who is covered or what types of explosive materials are covered, it is
not harassing or harming people as these persons are already required
to submit such a notice when they begin storing covered explosives. In
addition, because there are exemptions for several kinds of explosives,
including small-arms ammunition and commercially manufactured black
powder not exceeding 50 pounds, used solely for sporting, recreational,
or cultural purposes in antique firearms or devices, the rule would
also not impact, harm, harass, or deny, persons who make their own
ammunition for such purposes because, just as the current notice
requirement does not apply to them, the rule would not apply to them.
Rather, ATF proposed this notice requirement because it has an
important impact on the safety of those who respond to fires, and
people living or working near explosives storage sites. For more
details on this safety basis, see section III.B.7 of this preamble.
The proposed notice requirement also does not create an
authorization for ATF to come into peoples' homes without a warrant,
nor would it result in a warrantless search or seizure in violation of
the Fourth Amendment. See discussion in section III.B.3.b of this
preamble. The rule narrowly applies to storing explosive materials
covered by ATF regulations in 27 CFR part 555. Because explosive
materials may legally be distributed only to federal explosives
licensees/permittees or exempt government agencies, persons storing
explosive materials regulated by ATF will generally hold a federal
explosives license/permit. Explosives licensees/permittees are aware
that ATF may enter places where licensees/permittees store explosive
materials to inspect or examine required records or documents, and the
storage facilities, under Sec. 555.24. ATF may not enter locations
merely to inspect explosives stored by persons who do not hold a
federal license/permit. The rule does not change this. Therefore, for
those persons who do not hold a federal license/permit, ATF would
continue to have no right of warrantless entry to inspect explosive
materials stored at that location.
ATF acknowledges that the language in the proposed rule which
states that the individual must make ``each written notification . . .
available for examination or inspection by an ATF officer at all
reasonable times'' may lead to the incorrect conclusion that ATF may
enter the premises of individuals who do not hold a federal license/
permit without a warrant for inspection purposes. Out of an abundance
of caution, ATF is therefore removing that language from the final rule
text.
7. Does Not Enhance Public Safety
Comments Received
Some commenters believed the proposed annual notice requirement
would do nothing to stop gun violence and would not make communities
safer. One commenter acknowledged the importance of public safety, but
said the proposed rule failed to address the core issues surrounding
gun violence and thus would not aid public safety. Other commenters
stated that the rule showed insufficient evidence that the requested
level of notices would be necessary or would significantly reduce crime
and enhance public safety.
Some commenters focused more specifically on the proposed notice
requirement as a means of increasing safety and risk assessment
planning for first responders. These comments were predicated on the
idea that common hazardous materials are more dangerous than explosives
or that explosions on residential properties are not an issue. For
example, one commenter stated that according to their research, most
emergency responders and the public are injured or killed by common
hazardous materials, which would not be covered by the proposed notice
requirement, and it would thus serve little purpose. This commenter
added that chemicals such as propane, butane, chlorine, anhydrous
ammonia, ammonium nitrate, ethanol, crude oil, hydrocarbon fuels, and
liquefied petroleum gas are the major killers of emergency responders
and in particular, firefighters. Other commenters indicated that the
rule did not establish that smokeless or black powder is a serious risk
to firefighters. One of these commenters stated that the rule did not
include the actual number of serious injuries or persons killed from
explosions at residential properties within the last ten years, and
therefore the Department should not pursue the proposed regulation
unless it can show data of numerous deaths from explosions on
residential properties, and provide verifiable data that shows the
risks that firefighters have experienced.
A couple of other commenters considered notices on explosives
storage to be pointless. One commenter specified that 911 operators
already ask about hazardous materials at a location and they report
that information to the fire department, so notifying fire authorities
of such information would be redundant. This commenter added that
during an emergency, the fire department is not going to stop and
search files for notices. Another commenter stressed that ``anyone with
[[Page 60816]]
even the most basic of fire training understands that there are dangers
hidden within homes, from O2 cylinders to propane bottles; we need to
watch the fire's behavior and not the special note on a computer screen
that is usually out of date and useless. The government has shown over
and over that you are ineffective at even the most basic levels of
security and safety.''
A few commenters considered the notice requirement to be pointless
because gunpowder does not give rise to crime. One commenter stated
that the agency failed to show how this rule resolved a crime problem,
and another stated that smokeless powder is rarely used in criminal
acts. One commenter stated that according to their research, there is
no evidence that criminals or violent organizations purchase and store
large amounts of gunpowder to commit crimes.
A number of commenters raised issues with treating gunpowder or
smokeless gunpowder as an explosive and asserted that it is not a risk
to public safety. Several commenters stated that, while modern
smokeless gunpowder is flammable rather than an explosive, two stated
that it is only an explosive when not stored in compliance with current
regulations, and one added that it also is not a firearm. Another
commenter who reiterated that smokeless gunpowder is not an explosive,
also asked under what authority it was being reclassified as one. Other
commenters added that smokeless gunpowder is not dangerous when stored
properly in private homes, and a couple of commenters stressed that
there is no justifiable data showing that people who store gunpowder in
their homes pose a fire hazard or a significant threat. Another couple
of commenters said they do not remember hearing about any explosions or
increased fire damage caused by reloading powder storage.
One commenter does not believe the rule will be effective because
it does not provide guidance on safe storage practices.
A few commenters said this rule would not only fail to provide any
protection, it would also create a burden for the public as well as
local firefighters. While one commenter felt it made sense to know if
explosive materials are being stored, they stated there was no need to
collect this information for small amounts of the average household
items (e.g., yard fertilizer, black powder, paint thinners, small
amounts of gunpowder for reloading, lighter fluid, propane tanks). The
commenter stated that the notice requirement for household items would
be an overwhelming and complicated process, and lives could be lost if
fire departments have to check an extensive registry before fighting a
house fire. Another commenter stated that they believed it was
essential for the federal government to maintain public safety while
maintaining the rights of Americans; however, the proposed rule could
inadvertently discourage citizens from storing gunpowder responsibly
which could potentially lead to unsafe practices. One commenter said
the proposed rule would open a Pandora's box for the fireworks industry
and other industries.
ATF Response
ATF reiterates that the rule does not address firearms, firearms
safety, or violence from firearms. The rule applies only to explosive
materials that are subject to ATF's regulatory authority. The rule does
not expand the type or class of explosive materials that are subject to
ATF's explosives regulations or the existing notice requirement. The
rule does not apply to explosive materials that are specifically exempt
from ATF's explosives regulations, and covered explosive materials do
not include the household items listed by commenters (e.g., yard
fertilizer, black powder, paint thinners, small amounts of gunpowder
for reloading, lighter fluid, propane tanks). See 18 U.S.C. 845 and the
2025 Annual List of Explosive Materials, 90 FR 25077 (June 13, 2025).
See also discussion in the ATF response under section III.B.1 of this
preamble. The rule simply requires persons storing ATF-regulated
explosive materials to notify the local fire authority every 12 months
and when they cease storing explosives, in addition to the existing
initial notice requirement, in order to increase first responder and
public safety when fire or an explosion occurs at a location where
explosives are being stored.\10\
---------------------------------------------------------------------------
\10\ In 1998, ATF amended the regulations in 27 CFR part 55 (now
part 555) to require that any person who begins storing explosive
materials must notify the authority having jurisdiction for fire
safety in the locality in which the explosive materials are being
stored of the storage type, magazine capacity, and location of each
site where such explosives are stored. The 1998 final rule was
issued in response to numerous deaths and injuries sustained by
emergency response personnel responding to fires and other
emergencies at sites where explosives were stored without the
knowledge of state and local officials. See RIN 1545-AU09, 61 FR
53688 (Oct. 15, 1996).
---------------------------------------------------------------------------
For example, as noted in section I of this preamble, firefighters
and other fire safety officials generally do not attempt to fight a
fire that involves explosive materials because of the potential for an
explosion that could harm the responders. If officials know of the
existence of explosives in such close proximity to a fire, they also
typically evacuate the facility and the surrounding area to ensure the
safety of the first responders and the public.
Explosives industry members, association representatives, and
firefighting organizations specifically identified the increased
frequency in notifications to local authorities as one way to improve
safety in discussions as part of the 2013 working group established by
Executive Order 13650.\11\ They noted that local emergency response
organizations may sometimes have high personnel turnover, which can
cause the original report to be of less value as it might not come to
the awareness of incoming personnel. Id. This may be more the case in
locations that rely on volunteer or part-time personnel. They stated
that the safety and security of explosives facilities, responders, and
the surrounding communities would benefit from more frequent
communications between persons who store explosives and local fire
authorities. They also stated that more frequent communications would
promote explosives site visits and training opportunities for fire
responders. Id.
---------------------------------------------------------------------------
\11\ Executive Order 13650, Actions to Improve Chemical Facility
Safety and Security--A Shared Commitment, Report for the
President,'' at 51 (May 2014), <a href="https://www.osha.gov/chemicalexecutiveorder/final_chemical_eo_status_report.pdf">https://www.osha.gov/chemicalexecutiveorder/final_chemical_eo_status_report.pdf</a>.
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C. Comments Suggesting Changes
Comments Received
Several commenters provided suggestions or recommendations to
improve the rule. Most of these comments made suggestions about the
types and amounts of explosives that should be included under the
proposed rule's notice requirements. For example, some commenters
stated that there needs to be a distinction between notifying about
small and large amounts of storage, or the rule should require notices
only for very large amounts of explosives. Another commenter suggested
that the rule would serve the public better if it were extended to
black powder, dynamite, nitroglycerin, semtex, and other high
explosives used for lawful purposes.
Other commenters suggested items that should be exempt from the
annual notice requirement. Some commenters suggested that home
reloading and muzzle-loading use should be exempt from notice
requirements. Another commenter suggested that propellants manufactured
strictly for the purpose of reloading sporting ammunition should
[[Page 60817]]
be exempt from this rule as that would minimize ATF's enforcement
burden, minimize local fire department record-keeping burdens, and
minimize the need for additional personnel to implement and enforce the
proposed rule. One commenter suggested that powder and/or munitions
should not be required for notices because there are so many other
chemicals, aerosol, pesticides, thinners, cleaners, oil, and other
combustibles in the average home and/or garage that are not reported
annually.
Other comments made suggestions as to how ATF could better approach
the subject or expend its resources more usefully. One commenter
suggested that it would be more beneficial if ATF focused on publishing
a tutorial on how to safely store small quantities of explosives
instead of mandating annual notice requirements. Another commenter
recommended that the notice requirement be replaced with training
guidelines for first responders to ask when they are initially
contacted about a fire or upon their arrival at the scene of a fire. In
reference to ensuring public safety, one commenter believed ATF should
focus on comprehensive background checks, mental health initiatives,
and educational programs instead of finalizing the rule. Three other
commenters stated that the Department should work with people to ensure
the safety of our communities without infringing on peoples' rights and
imposing burdensome notice requirements on law-abiding citizens, and
that it is crucial to strike a balance between personal liberties and
public safety.
One commenter suggested that the National Fire Prevention
Association should be listed instead of ATF as a more appropriate
agency to handle storage and notice requirements for hazardous
materials.
ATF Response
In response to the comments suggesting that distinctions should be
made between which types of explosives are covered by the notice
requirement, or recommending a variety of exceptions to the kinds of
explosives covered, ATF believes the rule is clear that it is
applicable only to explosive materials currently subject to ATF's
explosives regulations in 27 CFR part 555. The rule does not expand the
type or class of explosive materials that are currently subject to
ATF's regulatory authority. Further, it does not require notification
for explosive materials specifically exempt from ATF's explosives
regulations. See 18 U.S.C. 845 and the 2025 Annual List of Explosive
Materials, 90 FR 25077 (June 13, 2025). See also discussion in the ATF
response under sections III.B.1 and 7 of this preamble. Persons subject
to the rule are already subject to the existing notice requirement
being proposed for revision, and should be aware of the current
requirement to notify the local fire authority when they begin storing
explosive materials subject to ATF regulations or they acquire a new
magazine. The rule simply requires them to make notifications every 12
months and when they cease storing explosives, in addition to the
current requirement of notification when storage begins.
With regard to comments suggesting that the paragraph proposed for
revision, 27 CFR 555.201(f), include the types and amounts of explosive
material that must be reported, and items that would be exempt from the
notice requirements, ATF does not accept these suggestions. The
paragraph proposed for revision is one paragraph in a full set of
regulations on explosives. It is not intended to be read by itself, and
other sections of the explosives regulations already contain the
suggested information. In addition, ATF already publishes an annual
list of explosive materials subject to ATF regulations in the Federal
Register that updates the list with new developments in the explosives
industry.
ATF does not believe that developing training material on how to
safely store small amounts of explosive material is a sufficient
substitute for the rule. The regulations at 27 CFR part 555 already
provide explosives licensees/permittees, and persons without an
explosives license/permit, with the necessary requirements to safely
and securely store explosive materials that are subject to ATF's
explosives regulations. The rule will allow local fire authorities to
develop their own response plans based on the information received from
the annual notification. Training material cannot replace the
information about the actual presence of explosives that local fire
authorities would receive through the annual notification.
ATF also disagrees that the National Fire Protection Association
should be responsible for notifying local fire authorities of stored
explosive materials. ATF, through the federal explosives laws, has been
delegated the authority by Congress and the Attorney General to reduce
the hazard to persons and property arising from misuse and unsafe or
insecure storage of explosive materials. Additionally, ATF already
requires that all persons storing explosive materials that are subject
to 27 CFR part 555 must provide notice of those materials to local fire
authorities; the rule just increases the frequency of those notices.
D. Comments on Economic Analysis
1. Need for Regulation
Comments Received
Multiple concerns and questions were posed by commenters asking
about the need to report on any combustible or explosive material that
is normally stored in limited quantities at businesses or in homes
(e.g., gasoline, fertilizer, swimming pool chemicals, propane, lithium
batteries), with an overriding concern that the proposed rule would
overwhelm citizens and businesses with burdensome notice requirements.
ATF Response
ATF disagrees that the rule would apply to combustible materials
such as gasoline, fertilizer, or swimming pool chemicals, which are not
regulated explosive materials. The need for the rule was to ensure that
first responders are aware of the location of magazines containing
explosives stored by anyone storing regulated explosives. This would
ensure that if a first responder were to respond to fires or explosions
in the building or nearby, they would be aware of the hazardous
conditions. Being aware of hazardous conditions in addition to the
existence of a fire enables first responders to anticipate the
potential need for specialized protective gear, determine alternate
approaches or methods, account for ways in which different explosive
materials might react to heat, and take other steps that might save
lives and minimize damage to property.
2. Burden on the Public
Comments Received
Many commenters stated the proposed rule was a waste of taxpayer
money, time, and resources. Many commenters expressed concern regarding
the burden the rule would place on the average citizen, businesses, and
manufacturers due to all the additional notices and record-keeping that
would result. One commenter expressed that the rule would cause
extremely burdensome paperwork and record-keeping for the average
citizen. The commenter also stated that the rule should not be allowed
as it would ``create an additional burden on citizens just on the
grounds of the Paperwork Reduction Act of 1995.''
ATF Response
This rule applies only to persons who store explosive materials
covered by
[[Page 60818]]
ATF explosives regulations in 27 CFR part 555. The rule would not
expand or change who would be required to submit notices from those who
are already required to report this information; it just increases the
frequency. The vast majority of persons who would be impacted by the
rule are already federal explosives licensees/permittees subject to
other record-keeping requirements. Although the rule would also impact
a small number of other persons who store explosive materials covered
by ATF regulations but who do not have a license/permit, this is
necessary to increase safety, as described in multiple portions of
section III.B of this preamble. The proposed change to the storage
notice requirement adds only minimal time or work. Persons subject to
the proposed annual notice frequency are already required to report the
same information to the same authorities when they begin storing
explosive materials at a given site or in a new one. So, if there are
no other changes from the prior notice, they would merely need to send
the same letter with a new date and signature each year. If there is a
change, updating the letter to reflect that change would require only
minimal time. ATF estimates that this annual notice requirement would
have an annual opportunity cost to licensees/permittees of five
minutes.
3. Impact on Small Businesses
Comments Received
One commenter emphasized that the rule would ``disproportionately
impact small businesses and individuals, further exacerbating the
regulatory burden they already face.'' One commenter posed several
questions regarding who would pay for all the additional resources
required to comply with the rule and stated that the economic impact
numbers provided are incorrect. Another commenter indicated that if
citizens are required to submit notices it will drive up the costs
associated with homeowners' insurance.
ATF Response
ATF disagrees that the rule would disproportionately impact small
businesses and individuals. As discussed in several parts of section
III.B of this preamble, the rule would not affect individuals storing
commercially available combustible materials such as those typically
found in residential households. It would apply only to persons who
store explosive materials covered by ATF explosives regulations in 27
CFR part 555. If a person is storing regulated explosive materials at
their home, they should already be complying with ATF regulations for
safely storing explosives in a magazine and accounting for the
increased risk to their home of these materials through their
homeowners' insurance. Merely notifying the local fire authority would
not affect those requirements or costs. For all businesses and other
persons covered by the rule, including small businesses, this rule will
impose only a five-minute burden in any given year, which is a de
minimis time burden and thus would not have a significant or
disproportionate impact on small businesses.
4. Government Costs
Comments Received
One of those commenters mentioned that the proposed annual notice
requirement would be a ``logistical nightmare,'' while many others
opined the rule would overwhelm and overburden already understaffed
fire departments, especially those with more limited budgets (such as
volunteer fire departments, small municipal departments, and those
located in rural areas). One commenter added that the notice
requirement would create a fiscal burden on local agencies and smaller
fire departments. Another commenter stated that the proposed rule would
put an undue burden on an already overworked agency (ATF). Another
commenter stressed that the notice requirement would result in excess
paperwork for firefighters. Another commenter opined that ``this
proposal will create unnecessary paperwork for the local fire
authority.'' The commenter also suggested that the proposed rule's
annual cost should include the cost to local communities for the time
and expense incurred by the local fire officials.
ATF Response
ATF disagrees. ATF acknowledges that local fire departments or
local municipalities will receive additional notices, which will
involve receiving, routing, and organizing this information. However,
ATF does not believe this is a significant paperwork burden on local
fire departments or local municipalities. Additionally, the regulation
does not require local jurisdictional authorities to do anything
specific with these notices. Therefore, ATF cannot speculate as to how
local jurisdictions will route or organize the notices. Furthermore,
the paperwork burden for persons who would have to report on their
regulated explosives storage once each year would be spread out among
approximately 9,100 individuals and entities throughout the entire
United States. Based on ATF's Federal Explosives Licensing Center
(``FELC''), the number of individuals or entities currently notifying
local authorities is approximately 600 or fewer persons per state,
depending on the location of licensed/permitted explosives entities. At
the local level, the number would be significantly smaller. The rule
would not affect all individuals or all businesses that might carry
small amounts of combustible materials.
5. Benefits
Comments Received
One commenter suggested issues they felt needed clarification in
the proposed rule's economic analysis section, such as providing better
details on potential threats to first responders, costs associated with
inspections, and potential alternatives. This commenter said the
proposed rule needed to explain the connection between the list of
explosives and actual fatalities or injuries to first responders.
ATF Response
ATF disagrees that the rule should account for costs associated
with inspections because the rule did not include a requirement for
inspections, and they are not triggered by the notice requirement. ATF
also disagrees that further explanation of the benefits of the rule's
notice requirement is necessary for a rule that imposes a five-minute
burden in a given year. Informing local fire authorities of explosives
storage is already a requirement for all persons when they begin
storing covered explosives and provides a benefit to fire authorities
in managing, assessing, and responding to fires and other issues in
their jurisdiction that might impact the stability of the explosives or
endanger first responders and others. It also aids them in being better
equipped and prepared for additional hazards if a fire occurs at the
magazine. This rule simply adds to the frequency with which they must
report the required information--from once when they begin to store the
covered explosives to once when they begin, every 12 months thereafter,
and when they cease storing the explosive materials, so that the local
authority has up-to-date information--at minimal cost to copy, paste,
and email. ATF responds to the comment about alternatives in the next
section.
6. Alternatives
Comments Received
Another commenter suggested that ATF consider alternative
approaches
[[Page 60819]]
that prioritize education, responsible gun ownership, and collaboration
with the firearms community.
ATF Response
ATF disagrees with the proposed alternatives and with the previous
commenter's assertion. This rule does not affect gun ownership;
therefore, focusing on responsible gun ownership would not be
applicable in this context. It also does not affect private citizens
who are not storing explosive materials covered by ATF explosives
regulations in 27 CFR part 555. In addition, private citizens who are
storing covered explosives are already subject to the requirement to
report this information; the rule only affects the notice frequency.
All persons subject to the rule should already have completed at least
one notice providing the required information to local authorities.
They therefore should not need training or education on how to create
or submit such a notice. First responders already know how to deal with
the dangers of explosives for the area, and ATF regularly collaborates
with firefighting and other first responder communities; the first
responders just need to know where explosives are, the types of
explosives, and the potential amount (as represented by the magazine's
capacity) so they can be prepared to safely respond to a fire emergency
involving a magazine. Federal explosives licensees/permittees, who
constitute the vast majority of persons subject to the rule, are
already required to be trained on safely storing explosive materials.
Other persons who have questions on these subjects can review ATF's
explosives website at <a href="http://www.atf.gov/explosives">www.atf.gov/explosives</a>.
IV. Final Rule
The current regulation at 27 CFR 555.201(f) requires any person who
stores explosive materials to provide to local fire safety officials an
oral notification before the end of the day on which the person begins
storing explosive materials subject to ATF's explosives regulations in
27 CFR part 555 at that location, and in writing within 48 hours after
they begin storing the explosives. Both forms of notification must
include the storage type, magazine capacity, and location of each site
where the person is storing such explosive materials.
The proposed rule did not propose changes to the existing
regulatory text but proposed adding to it. The proposed additions
included a requirement for the person to submit written notice,
covering the same information, once every 12 months following the
initial notice until the person is no longer storing explosive
materials at that site; a requirement that the person submit written
notice within 48 hours after they cease storing explosives at that
site; a requirement that the written notices must also include the
notification date and the name, title, and agency of the authority
official notified; and a requirement to retain the written notices for
five years from the notice date, and make it available for examination
or inspection by an ATF officer, as requested.
This rulemaking finalizes the proposed rule by amending Sec.
555.201(f) as proposed in the NPRM except the last clause relating to
examination and inspection. Because public comments indicated that this
language could lead to the incorrect conclusion that ATF may enter the
premises of individuals who do not hold a federal license/permit, ATF
is removing that language from the final rule. In addition, this rule
adds the phrase ``covered by this part'' to the first sentence of the
existing regulatory text, so it would read, ``Any person who stores
explosive materials covered by this part must notify . . . .'' ATF is
also making minor sentence structure edits to both the existing text
and the proposed amendment text to conform with plain writing
guidelines. Both the added phrase and these minor sentence structure
edits are being made in response to public commenters who misunderstood
that this notice requirement applies only to explosive materials
covered by ATF explosives regulations.
ATF is finalizing the proposed amendments because it believes
notification every 12 months will increase public safety through
increased communication between persons storing explosive materials and
their local emergency responders; provide regularly updated storage
information to local authorities; and allow for risk assessments and
emergency response preparation prior to incidents, thus reducing
potential safety and damage risk to first responders, emergency
equipment, and other people around explosives storage sites.
V. Statutory and Executive Order Review
A. Executive Orders 12866 and 13563
Executive Order 12866 (Regulatory Planning and Review) directs
agencies to assess the costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits.
Executive Order 13563 (Improving Regulation and Regulatory Review)
emphasizes the importance of agencies quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting public
flexibility.
This rule amends 27 CFR 555.201(f) to require written annual
notification to authorities having jurisdiction for fire safety of the
existence of stored explosive materials. More specifically, Sec.
555.201(f) already requires any person who stores explosive materials
to notify authorities with jurisdiction for fire safety about the
storage type, magazine capacity, and location of each site where such
explosive materials are stored when the person begins storing the
explosive materials. This rule adds a requirement for an updated report
once every 12 months thereafter, and when the person discontinues
storing the explosives. Annual notice to the local fire authority
ensures they have current information on explosives storage in their
area, which enables the fire authority to better plan for fires in such
locations and take appropriate steps to account for explosives. This
increases both the safety of first responders and of those in the areas
around the magazine. The explosives industry and fire authorities
support this reporting for these safety reasons. This requirement would
take about five minutes to send an email every 12 months and thus
involves de minimis cost to those submitting notices.
The Office of Management and Budget (``OMB'') has determined that
this rule is not a ``significant regulatory action'' under Executive
Order 12866.
B. Executive Order 14192
Executive Order 14192 (Unleashing Prosperity Through Deregulation)
requires an agency, unless prohibited by law, to identify at least ten
existing regulations to be repealed or revised when the agency publicly
proposes for notice and comment or otherwise promulgates a new
regulation that qualifies as an Executive Order 14192 regulatory action
(defined in OMB Memorandum M-25-20 as a final significant regulatory
action under section 3(f) of Executive Order 12866 that imposes total
costs greater than zero). In furtherance of this requirement, section
3(c) of Executive Order 14192 requires that any new incremental costs
associated with such new regulations must, to the extent permitted by
law, also be offset by eliminating existing costs associated with at
least ten prior regulations. This rule, however, is not an Executive
Order 14192 regulatory action because it is not a significant
regulatory action as defined by Executive Order 12866 and it does not
impose total costs greater than zero.
[[Page 60820]]
C. Executive Order 14294
Executive Order 14294 (Fighting Overcriminalization in Federal
Regulations) requires agencies promulgating regulations with criminal
regulatory offenses potentially subject to criminal enforcement to
explicitly describe the conduct subject to criminal enforcement, the
authorizing statutes, and the mens rea standard applicable to each
element of those offenses. This final rule does not create a criminal
regulatory offense and is thus exempt from Executive Order 14924
requirements.
D. Executive Order 13132
This rule will not have substantial direct effects on the states,
the relationship between the federal government and the states, or the
distribution of power and responsibilities among the various levels of
government. Therefore, in accordance with section 6 of Executive Order
13132 (Federalism), the Acting Director has determined that this rule
does not impose substantial direct compliance costs on state and local
governments, preempt state law, or meaningfully implicate federalism.
It thus does not warrant preparing a federalism summary impact
statement.
E. Executive Order 12988
This final rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice
Reform).
F. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, agencies
are required to conduct a regulatory flexibility analysis of any rule
subject to notice-and- comment rulemaking requirements unless the
agency head certifies, including a statement of the factual basis, that
the rule will not have a significant economic impact on a substantial
number of small entities. Small entities include certain small
businesses, small not-for-profit organizations that are independently
owned and operated and are not dominant in their fields, and
governmental jurisdictions with populations of less than 50,000.
The Acting Director certifies, after consideration, that this rule
will not have a significant economic impact on a substantial number of
small entities. ATF estimates that this rule will impact approximately
9,100 persons, with 8,774 of those being licensees/permittees, and the
majority of those being small businesses. However, ATF estimates that
the additional notifications will take up to five minutes annually to
provide written notification by email. It therefore does not impose a
significant economic impact on small businesses or the industry as a
whole.
G. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not likely to have a significant economic impact on a
substantial number of small entities under the Small Business
Regulatory Enforcement Fairness Act of 1996, 15 U.S.C. 657 and 5 U.S.C
601 note, as it imposes no additional costs.
H. Unfunded Mandates Reform Act of 1995
This rule does not include a federal mandate that might result in
the expenditure by state, local, and tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any one
year, and it will not significantly or uniquely affect small
governments. Therefore, ATF has determined that no actions are
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
I. Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995 (``PRA''), 44 U.S.C.
3501-3521, agencies are required to submit to OMB, for review and
approval, any information collection requirements a rule creates or any
impacts it has on existing information collections. An information
collection includes any reporting, record-keeping, monitoring, posting,
labeling, or other similar actions an agency requires of the public.
See 5 CFR 1320.3(c). This rule creates the need to revise an existing
information collection under the PRA. The title and description of the
information collection impacted by this rule, a description of those
who provide the information, and an estimate of the total annual burden
follow. The estimate covers the time for reviewing instructions,
searching existing sources of data, gathering and maintaining the data
needed, and completing and reviewing the collection.
Title: Notifying Fire Safety Authority of Stored Explosive
Materials.
OMB control number: 1140-0071.
Summary of the information collection: This regulation amends 27
CFR 555.201(f) to require annual notice to authorities having
jurisdiction for fire safety about explosive materials being stored in
their jurisdiction. Currently, any person who stores explosive
materials is required to notify authorities with jurisdiction for fire
safety about the storage type, magazine capacity, and location of each
site where such explosive materials are stored when the person begins
storing the explosives at that location. This rule amends the
regulation to require the person to also submit such notices annually
thereafter, and when the person ceases to store explosives there. Any
person storing explosive materials is also required to maintain a copy
of the written notification for five years from the date of the notice.
Need for information: It is important that first responders are
aware of explosives storage when responding to a fire site.
Firefighters and other fire safety officials generally do not attempt
to fight a fire that has engaged a container of explosive materials
because of the potential for an explosion that could harm the
responders. Knowing that explosives are stored at the site, in close
proximity to a fire, enables first responders to adjust their strategy
for handling and responding to the fire in such cases to provide better
public safety. The additional annual notice requirement provides local
authorities with updated information from which to assess the potential
danger from explosives at the site.
Proposed use of information: To provide first responders advance,
updated information about where explosives are stored, which enables
them to better plan for and respond to fires in close proximity to such
stored explosives, and increases public safety.
Description of the respondents: Persons or entities who store
regulated explosive materials.
Number of respondents: 9,100.
Frequency of response: once annually.
Burden of response: 5 minutes.
J. Congressional Review Act
Pursuant to the Congressional Review Act, 5 U.S.C. 801 et seq.,
OMB's Office of Information and Regulatory Affairs has determined that
this rule does not meet the criteria in 5 U.S.C. 804(2) to constitute a
major rule. This rule is not a major rule because it will not result in
an annual effect on the economy of $100 million or more; a major
increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.
Disclosure
Copies of the proposed rule, public comments received in response
to it, and this final rule are available through the federal
eRulemaking portal, at
[[Page 60821]]
<a href="https://www.regulations.gov">https://www.regulations.gov</a> (search for RIN 1140-AA51).
List of Subjects in 27 CFR Part 555
Administrative practice and procedure, Explosives, Freight,
Hazardous substances, Imports, Penalties, Reporting and recordkeeping
requirements, Safety, Security measures, Seizures and forfeitures,
Transportation, Warehouses.
Accordingly, for the reasons discussed in the preamble, ATF amends
27 CFR part 555 as follows:
PART 555--COMMERCE IN EXPLOSIVES
0
1. The authority citation for 27 CFR part 555 continues to read as
follows:
Authority: 18 U.S.C. 847.
0
2. Amend Sec. 555.201 by revising paragraph (f) to read as follows:
Sec. 555.201 General.
* * * * *
(f) Any person who stores explosive materials covered by this part
must notify the authority having jurisdiction for fire safety in the
locality in which the explosive materials are being stored of the type,
magazine capacity, and location of each site where such explosive
materials are stored.
(1) The person must make the notification in paragraph (a) of this
section orally before the end of the day on which they begin storing
the explosive materials, and in writing within 48 hours from when they
begin storing them.
(2) Thereafter, the person must submit written notice once every 12
months following the initial notice, but no later than the end of the
month during which the 12-month period is completed, unless the person
is no longer storing explosive materials at the relevant site.
(3) When a person ceases to store explosive materials at a site,
they must notify the authority having jurisdiction for fire safety in
the locality in which the explosive materials were stored in writing
within 48 hours after the person discontinues storing materials at that
location.
(4) Each written notice must also contain the notice date and the
name, title, and agency of the fire authority official notified. The
person submitting the notice must retain a copy of each written notice
for five years from the notice date.
* * * * *
Robert Cekada,
Director.
[FR Doc. 2026-19694 Filed 9-24-26; 8:45 am]
BILLING CODE 4410-FY-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.