The President recently signed what the news people are calling the Omnibus Spending Bill, more appropriately known as the Consolidated Appropriations Act, 2008 (HR 2764). This bill contains the appropriations for a number of government agencies, including DHS (Division E of the bill). There are only two provisions in the bill that actually affect the Chemical Facility Security community; sections 534 and 889.
Federal Preemption
Section 534 amends the legislation authorizing DHS to implement what is now known as CFATS (Section 550 of the Department of Homeland Security Appropriations Act, 2007). It adds the following language to that authorizing legislation:
“(h) This section shall not preclude or deny any right of any State or political subdivision thereof to adopt or enforce any regulation, requirement, or standard of performance with respect to chemical facility security that is more stringent than a regulation, requirement, or standard of performance issued under this section, or otherwise impair any right or jurisdiction of any State with respect to chemical facilities within that State, unless there is an actual conflict between this section and the law of that State.”
This language was meant to address the apparent (to some people) preemption of the rights of states (particularly New Jersey) to regulate the security of chemical facilities within their states. The current CFATS regulations (6 CFR part 27) only preempt provisions of state and local laws that conflict with the provisions of CFATS; exactly what this amendment states. Of course, this provision will make it difficult for DHS to amend 6 CFR part 27 to further restrict state and local legislation. I would not expect DHS to revise the current regulation due to this amendment.
Secure Handling of Ammonium Nitrate
Section 889 sets out language directing DHS to:
1. Establish (within 90 days, March 25, 2008) a threshold concentration of ammonium nitrate in a mixture,
2. Prepare (within 6 months, June 26, 2008) a proposed rule regulating the sale and transfer of ammonium nitrate,
3. Within 1 year (December 26, 2008) issue a final rule implementing the requirements of this section.
These regulations will accomplish the following general requirements:
1. Establish procedures for registering Ammonium Nitrate Facilities.
2. Establish procedures for registering Ammonium Nitrate Purchasers.
3. Require records of all transactions transferring Ammonium Nitrate between Facilities or to Purchasers.
4. Exempt transfers to licensed/permitted manufacturers of explosives from record keeping requirements.
5. Allow DHS to coordinate with Department of Agriculture and state governments during development of programs. Require DHS to coordinate with state programs regulating ammonium nitrate.
6. Allow DHS to delegate enforcement to states and requires DHS to delegate when requested by Governor.
7. Requires notification of Federal law enforcement agency within one day of discovery of any illegal transfer of ammonium nitrate.
8. Make it a federal crime for unregistered facilities/purchasers to transfer or possess ammonium nitrate or for registered facilities to transfer to unregistered purchasers.
9. Establish civil penalty of not more than $50,000 per violation.
10. Provides that nothing in these regulations will preempt regulations of any other department of the US Government.
11. Provides for preemption of state laws, except where state laws are more stringent.
This bill authorizes the appropriation of $2 Million for 2008 for these ammonium nitrate provisions, increasing to $10.75 Million per year for enforcement for the following 4 years.
In an earlier blog I wondered if DHS would incorporate such an ammonium nitrate mandate the CFATS regulations. Having seen the details of the new requirements, I think that it is more likely that these regulations would fall under a separate regulatory framework like the ATF regulations. I would hope that the new regulations would incorporate the same concentration requirements set forth in 6 CFR part 27.
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