Tag Archives: rulemaking

Massive Comment Filed in Opposition to ATF’s Proposed Rulemaking Regarding Bump-Stock-Devices – ATF – 2017R-22

Firearms Industry Consulting Group (“FICG”), a division of Civil Rights Defense Firm, P.C., is honored to announce that Chief Counsel Joshua Prince and Attorney Adam Kraut drafted and filed a 923 page Comment in Opposition to ATF’s proposed rulemaking on bump-stock-devices (docket no. ATF 2017R-22 ) on behalf of Firearms Policy Coalition (“FPC”) and Firearms Policy Foundation (“FPF”). A copy of FPC/FPF’s Press Release can be found here and copies of the massive Comment in Opposition and 35 Exhibits can be found here.

Humorously, it appears that FICG broke the eRulemaking Portal, as ATF was unable to upload all exhibits (i.e. videos) and had to break the exhibits up over two separate comment IDs:

FPC Comment

It bears substantial mentioning that Patton Media and Consulting and former Acting Director of the Firearms Technology Branch and Senior Analyst Richard (“Rick”) Vasquez of Rick Vasquez Firearms LLC were instrumental in providing irrefutable evidence that ATF has purposely misled the public on the function of bump-stock-devices. While this would undermine the efforts of an administrative agency with a sterling reputation for candor, as reflected in the Comment, ATF has a well-documented record of “spinning” facts and engaging in outright deception of the courts, Congress, and the public. Thus, it is imperative that the current Administration appoint a director to ATF, who has a stellar reputation for candor, honesty and upholding the law as written, so that ATF’s extremely tarnished reputation might be rehabilitated.

If you or your company wish to file a comment in support or opposition to a notice of proposed rulemaking by a federal administrative agency, contact Firearms Industry Consulting Group today to discuss your rights and legal options.

 


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

 

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FOIA Filed with ATF over Bump Stock Determinations

Today, Firearms Industry Consulting Group (FICG), on behalf of Firearms Policy Foundation (“FPF”), filed a, expedited Freedom of Information Act (“FOIA”) request with ATF requesting copies of all prior determinations issued by ATF regarding the lawfulness of bump stocks. As the comment period only permits comments to be submitted until June 27, 2018 and in the absence of disclosure of these documents, the public would be denied meaningful opportunity to respond, the FOIA request additionally requests expedited review and processing.

We will post ATF’s response when it is received. In the meanwhile, if you wish to stay apprised of issues relating to ATF attempting to ban bump stocks, please follow Americans Opposed to ATF 2017R-22 and after following, select “See First” under the Following tab so you can be assured to see all of the posts and updates!


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

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ATF Publishes Notice of Proposed Rulemaking RE: Bump-Stock-Type Devices

Today the ATF published a Notice of Proposed Rulemaking regarding Bump-Stock-Type Devices. The comment period is open for 90 days, making comments due on or before June 27, 2018.

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The proposed rule would alter the definition of a machine gun in the regulations pertaining to the National Firearms Act (27 C.F.R. § 479.1, et seq.), the Gun Control Act (27 C.F.R. § 478.1, et seq.), and the Arms Export Control Act (27 C.F.R. § 447.1, et seq.).

Currently, the definition of a machine gun (in the GCA and NFA regulations) is

Any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun, and any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person.

This change would alter the definition to include the following language

For purposes of this definition, the term “automatically” as it modifies “shoots, is designed to shoot, or can be readily restored to shoot,” means functioning as the result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through a single function of the trigger; and “single function of the trigger” means a single pull of the trigger. The term “machine gun” includes bump-stock-type devices, i.e., devices that allow a semiautomatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semiautomatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.

If you are interested in submitting a comment in opposition to the proposed rule, you may do so by visiting www.regulations.gov and searching the docket “ATF 2017R-22”. (Updated with link: https://www.regulations.gov/document?D=ATF-2018-0001-35714) If you wish to stay up to date on issues relating to this infringement of our rights, join the Facebook page Americans Opposed to ATF 2017R-22, where we will post updates and our submitted comments, as they become available. (Make sure to select “See First” from the Following tab to ensure that you see all of the posts)

All comments must reference the docket number ATF 2017R-22, be legible, and include the commenter’s complete first and last name and full mailing address. ATF will not consider, or respond to, comments that do not meet these requirements or comments containing profanity. In addition, if ATF cannot read your comment due to technical difficulties and cannot contact you for clarification, ATF may not be able to consider your comment.

Firearms Policy Coalition has retained Joshua Prince and myself to draft a comment in opposition on their behalf. To learn more visit: www.defendgunparts.com and Americans Opposes to ATF 2017R-22

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Trump Signs Bill Reversing Obama Rule to Report Certain Social Security Recipients to NICS

Late last year, I blogged that the Social Security Administration published a final rule relating to the NICS Improvement Act of 2007.

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The final rule provided that:

An individual will have been “adjudicated as a mental defective” if during SSA’s claim development and adjudication process, or when SSA takes certain post-entitlement or post-eligibility actions, SSA will identify any individual who:

  1. Has filed a claim based on disability;
  2. Has been determined to be disabled based on a finding that the individual’s impairment(s) meets or medically equals the requirements of one of the Mental Disorders Listing of Impairments (section 12.00 of appendix 1 to subpart P of part 404 of this chapter) under the rules in part 404, subpart P, of this chapter, or under the rules in part 416, subpart I, of this chapter;
  3. Has a primary diagnosis code in our records based on a mental impairment;

    Primary diagnosis code
     means the code we use to identify an individual’s primary medical diagnosis in our records. The primary diagnosis refers to the basic condition that renders an individual disabled under the rules in part 404, subpart P, of this chapter, or under the rules in part 416, subpart I, of this chapter.
  4. Has attained age 18, but has not attained full retirement age; and
  5. Requires that his or her benefit payments be made through a representative payee because we have determined, under the rules in part 404, subpart U, of this chapter, or the rules in part 416, subpart F, of this chapter, that he or she is mentally incapable of managing benefit payments.

While the rule would not have affected anyone until December of this year, it will now no longer affect anyone.

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On February 28, 2017, President Trump quietly signed a bill that was passed in both chambers of Congress which reversed the implementation of this rule. As a result, the Social Security Administration’s regulation is now no longer a threat to about 75,000 Americans.

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Of course, those who oppose individuals owning firearms, are attempting to sway public opinion by using a narrative that President Trump signed a bill which reversed Obama’s rule to ban gun purchases by the mentally ill. Given that many individuals did not know or understand what the rule actually did, it is not surprising this narrative is being utilized to delegitimize what is a good decision for Americans.

 

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Social Security Administration Publishes Final Rule Relating to NICS Improvement Amendments Act of 2007

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It has been well reported that the Social Security Administration (“SSA”) had been passing along information of individuals that it deemed unable to handle their financial affairs to NICS for the purposes of preventing them from purchasing a firearm due to being “adjudicated as a mental defective.”

In May of this year, the SSA published a Notice of Proposed Rulemaking. It received over 91,000 comments relating to the proposed rule. Of those, 86,860 were identical letters submitted by various individuals of a single advocacy group, opposing the proposed rule.

On December 19, 2016, the SSA published a Final Rule on the Federal Register pertaining to its regulations. While the regulations take effect on January 18, 2017 compliance is not required until December 19, 2017.

Public Comments

There were a number of comments on various issues, which I will recap a few points quickly below before moving on to explain the final rule and its impact.

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Second Amendment and Equal Protection

A number of individuals commented that “these rules would violate the affected individuals’ rights under the Second Amendment to the Constitution, and would also violate their equal protection rights under the Constitution. Most of these comments were provided in largely identical letters, and they asserted that our rules would take firearms away from elderly recipients of Social Security retirement benefits.”

SSA responds stating that “[t]he criteria we will use under these rules do not focus on one age group, such as the elderly or recipients of Social Security retirement benefits, nor do they categorize and treat individuals who are similarly situated differently.” Further, “[w]e do not intend under these rules to report to the NICS any individual for whom we appoint a representative payee based solely on the individual’s application for and receipt of Social Security retirement benefits.”

With regard to the Second Amendment claim, the SSA cites to District of Columbia v. Heller, 554 U.S. 570 (2008) for the proposition that “[l]ike most rights, the right secured by the Second Amendment is not unlimited,” and that “nothing in [the Court’s] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Heller at 626.

Unfortunately, the Heller decision gives no guidance as to what constitutes mentally ill. Is an individual who was diagnosed with OCD “mentally ill”? Where does one draw the line exactly?

Due Process

Individuals commented that the due process rights of the beneficiaries would be violated because the beneficiaries would not be able to appeal the decision prior to the inclusion of their information being reported to NICS, raised concerns about adequate notice being given to the beneficiary who might be reported and argued the costs of pursuing relief should an individual be reported to NICS would be onerous.

SSA responded stating that “[a]ffected individuals will have the opportunity to apply for relief from the Federal firearms prohibitions imposed by 18 U.S.C. 922(g)(4) at any time after our adjudication has become final…we will provide individuals with advance notice at the commencement of the adjudication that we may report their information to NICS if we find they meet the criteria for reporting when the adjudication is final.”

SSA goes on to state that they “will provide oral and written notice to the beneficiary at the commencement of the adjudication, which we define as after we have determined that he or she meets the medical requirements for disability based on a finding that his or her impairment(s) meets or medically equals the requirements of the mental disorders listings, but before we find that he or she requires a representative payee.”

Notice is extremely important and a lot of times never given to individuals. SSA incorporating both oral and written notice to an individual is pleasantly surprising, given a the litany of issues I see where an individual is never told that a finding may result in their Second Amendment rights being taken from them.

Lastly, regarding the cost of pursuing relief, SSA dismissed the concerns by stating they will not impose a fee in connection with a request for relief and that it believes the cost to obtain the evidence it would require for such a request for relief as “reasonable”.

Part of the criteria of the new rule is that the individual appealing the decision will provide the SSA medical evidence in the form of a statement of the individual’s current mental health status as well as their mental health during the preceding five years from the applicant’s primary mental health provider. Such evaluations are typically performed by a psychologist and cost anywhere between $1,500 to $2,000 on average.

Final Rule

In order for an individual to be reported to NICS, they have to meet the five (5) criteria spelled out in Section 421.110.

Adjudicated as a mental defective, in accordance with 18 U.S.C. 922(g)(4), as amended, means a determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease: Is a danger to himself or others; or lacks the mental capacity to contract or manage his own affairs.

An individual will have been “adjudicated as a mental defective” if during SSA’s claim development and adjudication process, or when SSA takes certain post-entitlement or post-eligibility actions, SSA will identify any individual who:

  1. Has filed a claim based on disability;
  2. Has been determined to be disabled based on a finding that the individual’s impairment(s) meets or medically equals the requirements of one of the Mental Disorders Listing of Impairments (section 12.00 of appendix 1 to subpart P of part 404 of this chapter) under the rules in part 404, subpart P, of this chapter, or under the rules in part 416, subpart I, of this chapter;
  3. Has a primary diagnosis code in our records based on a mental impairment;

    Primary diagnosis code means the code we use to identify an individual’s primary medical diagnosis in our records. The primary diagnosis refers to the basic condition that renders an individual disabled under the rules in part 404, subpart P, of this chapter, or under the rules in part 416, subpart I, of this chapter.

  4. Has attained age 18, but has not attained full retirement age; and
  5. Requires that his or her benefit payments be made through a representative payee because we have determined, under the rules in part 404, subpart U, of this chapter, or the rules in part 416, subpart F, of this chapter, that he or she is mentally incapable of managing benefit payments.

These criteria will be applied to capability findings that are made in connection with initial claims on or after December 19, 2017 and capability findings that are made in connection with continuing disability reviews (including age-18 disability redeterminations under § 416.987) on or after December 19, 2017. The latter provision will only apply in instances with respect to capability findings in which SSA appoints a representative payee for an individual in connection with a continuing disability review.

If the individual does not meet all five of the aforementioned requirements, then they will not be reported to NICS.

The regulations provide that if SSA determines the person is “mental defective” they will provide both oral and written notice to the affected individual that:

(a) A finding that he or she meets the criteria in § 421.110(b)(1) through (5), when final, will prohibit the individual from purchasing, possessing, receiving, shipping, or transporting firearms and ammunition, pursuant to 18 U.S.C. 922(d)(4) and (g)(4);

(b) Any person who knowingly violates the prohibitions in 18 U.S.C. 922(d)(4) or (g)(4) may be imprisoned for up to 10 years or fined up to $250,000, or both, pursuant to 18 U.S.C. 924(a)(2); and

(c) Relief from the Federal firearms prohibitions imposed by 18 U.S.C. 922(d)(4) and (g)(4) by virtue of our adjudication is available under the NIAA.

If an individual is reported, they may request relief from SSA as to the determination. Per Section 421.150 an application for relief must be in writing and include the information required by § 421.151. It may also include any other supporting data that the SSA or the applicant deems appropriate. When an individual requests relief under this section, SSA will also obtain a criminal history report on the individual before deciding whether to grant the request for relief.

Section 421.151 requires the applicant provide:

  1. A current statement from the applicant’s primary mental health provider assessing the applicant’s current mental health status and mental health status for the 5 years preceding the date of the request for relief; and

    The statement must specifically address:
    (i) Whether the applicant has ever been a danger to himself or herself or others; and
    (ii) Whether the applicant would pose a danger to himself or herself or others if we granted the applicant’s request for relief and the applicant purchased and possessed a firearm or ammunition.

  2. Written statements and any other evidence regarding the applicant’s reputation.

    The statements must specifically:
    (i) Identify the person supplying the information;
    (ii) Provide the person’s current address and telephone number;
    (iii) Describe the person’s relationship with and frequency of contact with the applicant;
    (iv) Indicate whether the applicant has a reputation for violence in the community; and
    (v) Indicate whether the applicant would pose a danger to himself or herself or others if we granted the applicant’s request for relief and the applicant purchased and possessed a firearm or ammunition.

The applicant may obtain written statements from anyone who knows the applicant, including but not limited to clergy, law enforcement officials, employers, friends, and family members, as long as the person providing the statement has known the applicant for a sufficient period, has had recent and frequent contact with the beneficiary, and can attest to the beneficiary’s good reputation. At least one statement must be from an individual who is not related to the applicant by blood or marriage.

The burden is on the applicant to show that he/she is not likely to act in a manner dangerous to public safety and that granting relief from the prohibitions imposed by 18 U.S.C. 922(d)(4) and (g)(4) will not be contrary to the public interest. Assuming those criteria are met, the SSA may grant relief. Unfortunately, the regulation does not state that they shall grant relief.

SSA’s regulations provide that a decision maker who was not involved in making the finding that the applicant’s benefit payments be made through a representative payee will review the evidence and act on the request for relief. If the request is denied, the applicant will have 60 days to file a petition for review in a Federal District Court. If the application for relief is approved, SSA will provide the applicant with written notice as to the reason for their decision, inform them that they are no longer prohibited under 18 U.S.C. 922(g)(4) from purchasing, possessing, receiving, shipping, or transporting firearms or ammunition based on the prohibition that we granted the applicant relief from, and inform the Attorney General of the decision in order to remove the applicant from the NICS database.

SSA has 365 days to act upon an application pursuant to NICS Improvement Amendments Act.

 

Did you find this blog helpful or informative? Be sure to share it with your friends by clicking the buttons below. Don’t forget to like Firearms Industry Consulting Group and Prince Law Offices, P.C. on Facebook by using the “Like” button to the right

ak4nra_logo-01smallIf you are an NRA Life, Endowment, Patron or Benefactor member or an annual member of the past 5 consecutive years I ask that you please consider me in the upcoming election for the Board of Directors in February of 2017. Ballots will be mailed in the February issue of the NRA magazine to which you are subscribed. For more information, please visit www.adamkraut.com.

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New Regulations for Explosives/Pyrotechnics Industries (Part 2)

 

09/19/2016

OSHA is currently accepting comments for proposed rulemaking. The proposal is for new Process Safety Management rules for the Explosives and Pyrotechnics Industries and comments will be accepted until September 23rd!

You might ask, “What is ‘Process Safety Management’?”  That is a great question answered in Part 1 of this post click HERE to check it out!

The proposed regulations are expansive and, along with those items mentioned in Part 1, require that employers develop PHAs, SOPs, and Mechanical Integrity Plans.  So welcome to Part 2 let’s get started.

Process Hazard Analyses (PHAs)

Among the proposed regulations is the requirement that all employers perform PHAs.  OSHA defines PHAs as – “A systematic effort designed to identify and analyze hazards associated with the processing or handling of highly hazardous materials; and a method to provide information which will help workers and employers in making decisions that will improve safety.”

At its heart PHAs ares nothing more than identifying processes and identifying what hazards are present. OSHA states that PHAs “attempt[] to determine: the failure points, methods of operations, and other factors that potentially lead to accidents.”

Beyond that, OSHA’s best guidance on the subject was developed by The New Jersey Work Environment Council (WEC) under grant of OSHA. That document is 31 pages long and can be downloaded HERE.  Most businesses have (at a minimum) dozens of processes.  If you fail to identify a hazard within a process, that is a violation.  If you fail to identify a process and the hazards it contains – violation. If you fail to document everything in accordance with those 31 pages of ‘guidance’ – violation.

Seven Steps to PHA Success

Here is a hypothetical – Fictional Enterprises makes Pyrotechnics. The manufacturing is complicated involving over 75 operations.  – Each of these involves one process for purposes of a PHA. Operation 34 states – Technician will mix 3mL of Chemical X with 25cc of Explosive. Technician must then place the mixture in Centrifuge, spinning mixture for exactly 5 minutes at exactly 120 rpm. Fictional Enterprises wants to perform a PHA on Operation 34.

Step 1 – assembling the right team. OSHA stipulates that to perform a PHA your team, “should include engineers, operators, supervisors and other workers who have knowledge of the standards, codes, specifications…which apply to the process….” You assemble Mr. Engineer, Mrs. Supervisor, Ms. Technician, and Homer the technician who performs Operation 34. Your team proceeds to…

Step 2 – develop checklists of applicable regulations and safety standards. Your team examines Operation 34, finding 3 fire safety codes, 5 electrical ordinances, 9 chemical safety standards, and 122 other regulations which may be applicable to Operation 34. Developing the checklist was performed efficiently and only required 42 man hours to complete. The team moves to…

Step 3 – examine those regulations and determine the steps needed to ensure compliance with (or alternatively the non-applicability of) the standards.  All of this must be documented and included in your PHA. Your team continues their efficiency requiring 115 man hours to finish. The team now begins…

Step 4 – performing “What If” evaluations. OSHA defines this as having, “a relatively loose structure” and “only [being] as effective as the quality of questions asked and the answers given.” Even with that precision guidance your team spends 100 man hours in brainstorming the possible “what ifs.” The team now moves to…

Step 5 – Hazard and Operability Study (HazOp). OSHA defines this as “a structured, systematic review that identifies equipment that is being used in a way that it was not designed to be, and which might create hazards or operational problems.”  OSHA notes that this may require an additional “multi-skilled team.” This team must be familiar with, “piping and instrument diagrams” and have a competent understanding of “certain limitations and deviations in flow, temperatures, and pressures…” for your equipment.

Your team enlists the help of Supplier Engineer, Equipment Designer, and Senior Chemist. The team is efficient and prepared documentation for your PHA in only one week.  The Team moves to…

Step 6 – Failure Mode and Effect Analysis (FMEA). OSHA defines this process as a “systematic study of the consequences of failure (breakdown) of certain operational hardware….” This is the only guidance provided and results in your team spending an additional week attempting to figure out the FMEA.  The team moves to…

Step 7 – Fault-Tree Analysis. OSHA describes this as, “draw[ing] a picture (model) that shows what undesirable outcomes might result from a specific initiating event….” Or you make a flow chart of Operation 34, INCLUDING flow routes for if things go wrong.  So instead of just having “Homer runs centrifuge for 5 minutes” you should also include what happens if Homer gets distracted by a certain round raspberry confection and lets the centrifuge spin for 19 minutes.

The team is fortunate to have Homer with them and subsequently maps out all the possible faults in only 97 man hours.  Bringing your total time in completing the PHA for Operation 34 to over 800 man hours.

What’s wrong with this picture?

 The first thing you probably noticed was just how many man hours it takes to complete the PHA for one operation. Good thing your company only has 74 more that need to be evaluated…

The next thing that creates a problem is the FMEA.  OSHA provides very little guidance on FMEAs. This could mean they want you to use RAGAGEP but this is never stated. Given that OSHA is explicit in the other sections where they want RAGAGEP it might mean they have some specific standard in mind.  However, if it exists, it is not provided.

Worse still would be if RAGAGEP is to be used –With Aerospace you must often perform FMEAs before you are certified to conduct business.  The American Society for Quality (ASQ) has an excellent write up on their preferred methods for performing FMEAs.  This method is one I am familiar with and find to be successful.  Their write up can be found HERE.  Interestingly, you will note that the ASQ methodology for FMEAs is very similar in description to what OSHA requires for the entire PHA.

This should be of significant concern to business owners because it muddies what OSHA wants.  If they want you to refer to RAGAGEP the ASQ standard is undoubtedly one of the most thorough in the business.  However, if you follow the ASQ methodology you will essentially have a PHA within a PHA. Alternatively, if OSHA wants you to use a specific standard – they do not provide it. In short the FMEA requirement’s lack of clarity puts employers in a catch 22.

Some readers may note that the PHA steps listed above are exactly what is already available in the above referenced guidance document.  This is true and the next problem – the proposed regulations merely create an additional standard which can be cited as requiring employers to be compliant.  So what was before a violation of one PHA requirement can now be a violation of two.

My final gripe before we continue is that OSHA expressly states their reason for promulgating these new regulations are several incidents which could have been prevented had PHAs or other measures been taken.  These new requirements do not assist employers in being better able to conduct PHAs. Neither do they require employers who were previously unregulated to conform.

To the contrary, these new regulations will only serve to confuse businesses by telling them to comply with multiple but un-specified RAGAGEP standards. Confusing and redundant standards do not promote worker safety. They create a culture where employers who are unable to understand what OSHA wants merely give up. OSHA’s response continues to be “just fine them again” rather than actually finding ways to create safety standards that are clear, concise, and focused on the functional application of safe work practices.

In addition to the PHAs employers are also going to be re-required to create Standard Operating Procedures (SOPs) and create Mechanical Integrity Plans.

SOPs, in brief (I promise).

Again, OSHA is only reiterating already promulgated rules on operating procedures. The only new provision is a couple of vague examples encouraging those in the explosive and pyrotechnics industries to look to RAGAGEP for particulars of their industry.  It is also worth noting that as required by several other standards this standard would once again require employees be trained in the procedures and that employers document this training. However, the general requirements for procedures remain the same:

  1. Procedures must be written.
  2. must be clear
  3. must be available to all operators.
  4. must specify steps for
    1. normal operation.
    2. upset conditions
    3. temporary operations
    4. start-up
    5. emergency shutdown
  5. must include Basic Safety Information
  6. must be certified annually for current-ness an adequacy.
    1. Recommended that they be reviewed before each use to verify the current version is in use.

Mechanical Integrity Plans (MIPs)

OSHA’s requirements for Mechanical Integrity Plans are essentially PHAs used to evaluate equipment rather than processes.  So instead of focusing on what an operator is doing you focus on how our example Centrifuge works, in great detail.

OSHA decided to also include an explicit RAGAGEP provision. So in addition to the extreme scrutiny that must be given within the PHA styled process, they also require “employers [to] identify the subset of RAGAGEP most appropriate for their process equipment, document in the MIP which protocols are to be followed, and ensure that inspection and testing is performed accordingly.”  So stated in English, OSHA’s new standard is requiring employers to (1) figure out which standards apply to them; (2) write up how they decided this and how they are complying; and (3) ensure they are complying in the appropriate manner to the standards which the employer had to find themselves.

OSHA states, “employers are completely unfamiliar with [] RAGAGEP references, consultation with a professional [] is advised.” This can be roughly translated as OSHA saying, “Good luck complying!”

Closing Remarks (and the people rejoice)

This whole section of proposed regulation is a farce.  It is an attempt by OSHA to satisfy an executive order by promulgating a new rule that says nothing more than “do our existing rules” and “find what rules apply and then follow them.”  I cannot reiterate enough that this does not promote worker safety.  No sane person wants their employees to be endangered.  However, no employer can commit to thousands of man hours just to guess at whether they are being compliant with an OSHA Standard.

If your business is in the explosives or pyrotechnics industry I implore you to consider submitting an official comment to OSHA.  OSHA is accepting comments through THIS FRIDAY, September the 23rd.  Click HERE to submit a comment or download the proposed regulations. Comments made to these proposed rules really can affect OSHA’s actions!

Whether you are in the Explosives industry and would like to submit an official comment or you just want to make sure your business is compliant with existing OSHA requirements Prince Law Offices is happy to be of assistance.  Just call 888-313-0416 to schedule an appointment.


Jonathan Moore  served as Manager of Corrective Actions and Director of Corporate Compliance for an Aerospace Manufacturing Company. He  now serves as Prince Law Offices in-house OSHA Consultant while attending law school at the Pennsylvania State University School of Law.

 

 

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Extremely Interesting Developments Relating to ATF’s Re-Opening of the Comment Period for the ATF 4473

As our readers are likely aware, I previously blogged that ATF had re-opened the comment period for the ATF 4473 form. After digging a little deeper, I determined that OMB issued a PRA Primer Memo of April 7, 2010 directing that an agency, after providing the initial 60 day notice period required by 44 U.S.C. 3506(c)(2)(A), summarize the public comments received and any response by the agency, then submit that information to OIRA and thereafter provide an additional 30 day comment period so the public has an opportunity to respond to comments submitted.

Accordingly, on August 5, 2016, I submitted a correspondence to OIRA and ATF citing to the PRA Primer Memo and explaining that in relation OMB Number 1140-0020 “ATF has failed to provide either (1) the actual comments submitted or (2) any summary of the public comments received (as well as any response by the agency); therefore, depriving the public of any opportunity to know what comments were submitted and depriving the public of an opportunity to respond to those comments and thereby eviscerating the purpose of the 30 day comment period.”

Although I received no response from OIRA or ATF, today, Attorney Adam Kraut, who drafted our Comment in Opposition, initially received an email from the ATF Firearms Industry Program Branch (FIPB) in relation to his June 1, 2016 email inquiring as to why ATF was not posting or providing access to the comments submitted regarding the proposed changes to the ATF 4473. FIPB stated that “Comments received from this information collection will soon be available on the www.reginfo.gov website.”

Shortly thereafter, Attorney Kraut received a second email from FIPB with a response to Firearms Industry Consulting Group‘s Comment in Opposition. You can download a copy of ATF’s response to our Comment here. Additionally, I recently learned that ATF also emailed a response to our friends at Cannabis Industry Law Group in relation to their Comment in Opposition to the ATF 4473 and ATF provided this response.

It appears that OIRA was not exactly happy with ATF’s failure to comply with OMB’s requirements and directed ATF to correct its errors. It will be interesting to see if the 30 day comment period is extended to provide all interested parties with the requisite 30 days to respond, after ATF provides access to all comments received and its responses thereto.

If you are in the Firearms Industry and desire to file comments in relation to ATF, DDTC or any other federal agency’s rulemaking, contact us today to discuss how we can assist.

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