(a) Definition of new explosive. For the purposes of this subchapter a new explosive means an explosive produced by a person who:
(1) Has not previously produced that explosive; or
(2) Has previously produced that explosive but has made a change in the formulation, design or process so as to alter any of the properties of the explosive. An explosive will not be considered a “new explosive” if an agency listed in paragraph (b) of this section has determined, and confirmed in writing to the Associate Administrator, that there are no significant differences in hazard characteristics from the explosive previously approved.
(b) Examination, classification and approval. Except as provided in §§ 173.64, 173.65, and 173.67, no person may offer a new explosive for transportation unless that person has specified to the examining agency the ranges of composition of ingredients and compounds, showing the intended manufacturing tolerances in the composition of substances or design of articles which will be allowed in that material or device, and unless it has been examined, classed and approved as follows:
(1) Except for an explosive made by or under the direction or supervision of the Department of Defense (DOD) or the Department of Energy (DOE), a new explosive must be examined and assigned a recommended shipping description, division and compatibility group, based on the tests and criteria prescribed in §§ 173.52, 173.57 and 173.58. The person requesting approval of the new explosive must submit to the Associate Administrator a report of the examination and assignment of a recommended shipping description, division, and compatibility group. If the Associate Administrator finds the approval request meets the regulatory criteria, the new explosive will be approved in writing and assigned an EX number. The examination must be performed by a person who is approved by the Associate Administrator under the provisions of subpart H of part 107 of this chapter and who -
(i) Has (directly, or through an employee involved in the examination) at least ten years of experience in the examination, testing and evaluation of explosives;
(ii) Does not manufacture or market explosives, and is not controlled by or financially dependent on any entity that manufactures or markets explosives, and whose work with respect to explosives is limited to examination, testing and evaluation; and
(iii) Is a resident of the United States.
(2) A new explosive made by or under the direction or supervision of a component of the DOD may be examined, classed, and concurred in by:
(i) U.S. Army Technical Center for Explosives Safety (SMCAC-EST), Naval Sea Systems Command (SEA-9934), or Air Force Safety Agency (SEW), when approved by the Chairman, DOD Explosives Board, in accordance with the DOD Ammunition and Explosives Hazard Classification Procedures (IBR, see § 171.7 of the subchapter); or
(ii) The agencies and procedures specified in paragraph (b)(1) of this section.
(3) A new explosive made by or under the direction or supervision of the Department of Energy (DOE) may be -
(i) Examined by the DOE in accordance with the DOD Explosives Hazard Classification Procedures, and must be classed and approved by DOE; or
(ii) Examined, classed, and approved in accordance with paragraph (b)(1) of this section.
(4) For a material shipped under the description of “ammonium nitrate-fuel oil mixture (ANFO)”, the only test required for classification purposes is the Cap Sensitivity Test - Test Method 5(a) prescribed in the Explosive Test Manual (UN Manual of Tests and Criteria) (IBR, see § 171.7 of the subchapter). The test must be performed by an agency listed in paragraph (b)(1), (b)(2), or (b)(3) of this section, the manufacturer, or the shipper. A copy of the test report must be submitted to the Associate Administrator before the material is offered for transportation, and a copy of the test report must be retained by the shipper for as long as that material is shipped. At a minimum, the test report must contain the name and address of the person or organization conducting the test, date of the test, quantitative description of the mixture, including prill size and porosity, and a description of the test results.
(c) Filing DOD or DOE approval report. DOD or DOE must file a copy of each approval, accompanied by supporting laboratory data, with the Associate Administrator and receive acknowledgement in writing before offering the new explosive for transportation, unless the new explosive is:
(2) Covered by a national security classification currently in effect.
(d) Transportation of explosive samples for examination. Notwithstanding the requirements of paragraph (b) of this section with regard to the transportation of a new explosive that has not been approved, a person may offer a sample of a new explosive for transportation, by railroad, highway, or vessel from the place where it was produced to an agency identified in paragraph (b) of this section, for examination if -
(1) The new explosive has been assigned a tentative shipping description and class in writing by the testing agency;
(2) The new explosive is packaged as required by this part according to the tentative description and class assigned, unless otherwise specified in writing by the testing agency; and,
(3) The package is labeled as required by this subchapter and the following is marked on the package:
(i) The words “SAMPLE FOR LABORATORY EXAMINATION”;
(ii) The net weight of the new explosive; and
(iii) The tentative shipping name and identification number.
(e) Transportation of unapproved explosives for developmental testing. Notwithstanding the requirements of paragraph (b) of this section, the owner of a new explosive that has not been examined or approved may transport that new explosive from the place where it was produced to an explosives testing range if -
(1) It is not a primary (a 1.1A initiating) explosive or a forbidden explosive according to this subchapter;
(2) It is described as a Division 1.1 explosive (substance or article) and is packed, marked, labeled, described on shipping papers and is otherwise offered for transportation in conformance with the requirements of this subchapter applicable to Division 1.1;
(3) It is transported in a motor vehicle operated by the owner of the explosive; and
(4) It is accompanied by a person, in addition to the operator of the motor vehicle, who is qualified by training and experience to handle the explosive.
(f) Notwithstanding the requirements of paragraphs (b) and (d) of this section, the Associate Administrator may approve a new explosive on the basis of an approval issued for the explosive by the competent authority of a foreign government, or when examination of the explosive by a person approved by the Associate Administrator is impracticable, on the basis of reports of tests conducted by disinterested third parties, or may approve the transportation of an explosives sample for the purpose of examination by a person approved by the Associate Administrator.
(g) An explosive may be transported under subparts B or C of part 171 or § 176.11 of this subchapter without the approval of the Associate Administrator as required by paragraph (b) of this section if the Associate Administrator has acknowledged in writing the acceptability of an approval issued by the competent authority of a foreign government pursuant to the provisions of the UN Recommendations, the ICAO Technical Instructions, the IMDG Code (IBR, see § 171.7 of this subchapter), or other national or international regulations based on the UN Recommendations. In such a case, a copy of the foreign competent authority approval, and a copy of the written acknowledgement of its acceptance must accompany each shipment of that explosive.
(h) The requirements of this section do not apply to cartridges, small arms which are:
(1) Not a forbidden explosive under § 173.54 of this subchapter;
(2) Ammunition for rifle, pistol, shotgun, or tools;
(3) Ammunition with inert projectile or blank ammunition; and
(4) Ammunition not exceeding 50 caliber for rifle or pistol cartridges or 8 gauge for shotgun shells.
Cartridges, small arms meeting the criteria of this paragraph (h) may be assigned a classification code of 1.4S by the manufacturer.
(i) If experience or other data indicate that the hazard of a material or a device containing an explosive composition is greater or less than indicated according to the definition and criteria specified in §§ 173.50, 173.56, and 173.58 of this subchapter, the Associate Administrator may specify a classification or except the material or device from the requirements of this subchapter.
[Amdt. 173-224, 55 FR 52617 Dec. 21, 1990, as amended at 56 FR 66267, Dec. 20, 1991; Amdt. 173-234, 58 FR 51532, Oct. 1, 1993; 62 FR 51560, Oct. 1, 1997; 63 FR 37461, July 10, 1998; 64 FR 10777, Mar. 5, 1999; 66 FR 45379, Aug. 28, 2001; 68 FR 75743, Dec. 31, 2003; 72 FR 25177, May 3, 2007; 78 FR 1074, Jan. 7, 2013; 78 FR 42477, July 16, 2013; 83 FR 55809, Nov. 7, 2018; 85 FR 75713, Nov. 25, 2020]