Thursday, October 30, 2008

Ammonium Nitrate ANPRM – Comments Requested

Yesterday I noted that DHS had published their ANPRM for Ammonium Nitrate. DHS is looking for public input as they develop the regulations that will implement the requirements set forth in § 563 of the 2008 Consolidated Appropriations Act, Subtitle J, Secure Handling of Ammonium Nitrate (``Section 563''), Public Law 110-161. 

Section 563 Requirements Last year I described the Ammonium Nitrate requirements from § 563 (see: “DHS and the Omnibus Spending Bill”). Generally speaking that section requires DHS to establish a regulatory structure to control the sale and transfer of Ammonium Nitrate (AN) in a variety of forms and concentrations. The regulations would require the registration of AN manufacturing, sales and using facilities. It would also require the sale or transfer of AN could only take place between registered individuals or facilties. 

DHS breaks the requirements down into four categories of ‘activities’ and a number of supporting ‘sub-activities’ that would be regulated. Their listing would look like this: Category 1: Registration Activities
A. Registration Applications.

          B. Terrorist Screening Database (TSDB) Checks. 

         C. Registration Numbers.

Category 2: Point-of-Sale (POS) Activities
A. Seller Verification of Purchaser's Registration and Identity.

          B. Recordkeeping.

Category 3: Additional Regulatory Activities/Requirements
A. Reporting Theft or Loss of AN.

          B. Inspections and Audits. 

          C. Guidance Materials and Posters

Category 4: Administrative Activities
A. Appeals and Penalties.

          B. Establishing Threshold Level of AN in a Substance

Comments Requested 

The ANPRM provides a list of thirteen areas that DHS would like to have addressed by the soon-to-be-regulated community. These comment areas range from data about the computer skills employees working in the various parts of the AN industry (to evaluate the potential use of computers instead of paper for record keeping) to the potential economic impact of these regulations. 

The area of economic impact, both to various levels of government and the regulated community, is one of apparent special interest to DHS. They provide some of the highest level of detail in describing the type of data they are looking for. There are separate descriptions of governmental and civilian data requests. DHS explains the civilian data request this way:
“Comments on the monetary and other costs anticipated to be incurred by U.S. citizens and others as a result of the new compliance requirements, such as the costs in time and money that an individual may incur to obtain an AN registration. These costs may or may not be quantifiable and may include actual monetary outlays, transitional costs incurred to obtain alternative documents, and the costs that will be incurred in connection with potential delays at the point of sale.”
Late Rule Making Progress 

The legislation sets out a fairly aggressive schedule for developing and adopting the regulations to support this requirement. The following schedule was provided:
90 Days (3-25-08) Establish threshold concentration of AN in solution

         6 Months (6-26-08) Publish Proposed Rule 

         12 Months (12-26-08) Publish Final Rule

DHS could justifiably claim that the 90 day requirement was achieved before this legislation was passed last December. Appendix A to 6 CFR part 27 provides concentrations for both explosive AN (any commercial grade) and fertilizer AN (33% solid AN). DHS does not take that position in this ANPRM. One of the comment areas in the ANPRM deals with the “detonability of AN at certain concentrations”. 

DHS has missed the Proposed Rule deadline by five months already. By the time the current comment period is closed eleven months will have already passed since the legislation was passed; it is unlikely that even the proposed rule will be completed in the time remaining for the Final Rule Deadline.

Reasons for Delay 

There are a number of probable reasons for the delay. The first would be the matter of priorities; CFATS implementation has obviously been given a higher administrative priority. When this legislation was passed, the DHS chemical security people were deep into receiving Top Screen submissions. In fact, the Section 563 requirement complicated the already difficult agricultural submissions and was partially responsible for Agriculture Top Screen Extension (see: “Update on Agriculture Top Screen Extension”) 

The Top Screen was followed by preparing the SVA program for implementation. This included writing two new manuals. Additionally, the two Top Screen manuals were revised to reflect the lessons leaned in the first mass Top Screen submission. Once the SVA submissions started (with the attendant problems that have not been made public) the rewrite of the two CVI manuals was the next big role-out followed quickly by the publication of the draft RBPS Guidance document. The chemical security writers and reviewers have been busy campers. 

Another possible reason for the delay can be found in a presidential directive not to publish last minute rules in the closing months of the current administration. Apparently President Bush remembered well the flurry of rule making that marked the waning days of the Clinton Administration. He expressed a desire not to inflict the same burden on the next administration. 

Additionally, there appears to be at least some Congressional complicity in the delay of the development of these regulations. We can deduce this using the Sherlock Holmes technique of noticing what the dog did not do; there has been no vocal outcry from Chairman Thompson about the delay. Chairman Thompson has never been known to shy away from taking the Secretary to task for programmatic delays, but we have seen no such public pillaring over this issue. This probably indicates that the Chairman is looking forward to an Obama administration developing these rules. 

Finally the power of the agriculture lobby can not be discounted as a contributing factor in the delay in developing this rule. There has not been the same public level of opposition to this rule as we saw last year in the great propane fight, but there was undoubtedly pressure brought to bear to delay this rule. In any case, the next administration will have the opportunity to publish the Proposed Rule for the regulation of Ammonium Nitrate sales and transfers.

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