Ammonium Nitrate Rule Legislative Background

In my blog yesterday (see: “Comments on Ammonium Nitrate ANPRM – 12-19-08”) I noted that the Institute of Makers of Explosives (IME) commented in their submission that there was no legislative history for the § 563 authorization for this rule; that that section had been added to the Consolidated Budget Bill outside of the normal legislative process. I agreed with that assessment and pointed to some of the problems that that had caused for DHS in their rule development process. After writing and posting that blog, I did a little bit of digging on Thomas.LOC.gov, the Library of Congress web site dedicated to maintaining a history of the progress of legislation. In that digging I found that there was more of a legislative history to § 563 than I gave credit for in yesterday’s blog. Secure Handling of Ammonium Nitrate Act of 2007 Section 563 started out as HR 1680, the Secure Handling of Ammonium Nitrate Act of 2007. It was introduced by Chairman Thompson of the House Homeland Security Committee on March 26th, 2007. It was assigned to the Subcommittee on Emerging Threats, Cybersecurity, and Science and Technology. No hearings were held on this bill, relying on a single subcommittee hearing held in the 109th Congress on HR 3197, a similar bill, in December 2005. The Homeland Security subcommittee considered HR 1680 in a meeting on March 28th, 2007. It was reported favorably to the full committee without amendment after that meeting. The full committee considered the bill in meetings on April 17th and 26th, amending the bill and ordered it reported to the House, as amended, by a voice vote. House Report 110-357 House Report 110-357 was produced on October 2nd, 2007. The report points to a number of terrorist attacks and thwarted attacks where ammonium nitrate was used to make the bomb used in the attack. It then notes (page 7):

“This legislation is needed to create a nationwide, minimum standard for regulating the sale of ammonium nitrate based fertilizers nationwide that could be used in terrorist acts, without unduly burdening the agricultural sector’s access to ammonium nitrate fertilizer for farming and other legitimate agricultural purposes.”

The House Report incorporates the Congressional Budget Office estimates of costs and revenues for the implementation of this proposed legislation. The CBO estimates the cost of implementing this bill by DHS to be $45M through 2012. Principally this would be the cost of hiring 60 inspectors and 20 administrative personnel. The CBO estimated that the costs to owners of ammonium nitrate facilities and users to “be small relative to the annual threshold” (page 12) of $131M set by the Unfunded Mandates Reform Act. The report provides a lengthy discussion of the intent of the Homeland Security Committee in the ‘Section-by-Section Analysis of the Legislation’ section (pages 13 – 18). While that discussion does address the IME’s concern about requiring DHS registration of ATF registered users of the explosive form of AN (page 14), it does not address their concerns about the corporate ownership issue. The discussion does address the ‘point of sale’ versus ‘point of distribution’ issue. On page 15 the report states:

“Moreover, the Committee emphasizes that not only must an owner verify the identity of a purchaser in a manner determined appropriate by the Secretary, but that such identity verification shall include confirmation of the agency relationship where an agent takes possession of ammonium nitrate for the buyer.”

This would make it very difficult not to make transportation personnel agents in the transaction. It appears that they would either have to be agents of the buyer by taking ‘possession of ammonium nitrate’, or they need to act as agents of the seller by verifying the registration status of the receiver upon delivery. In either case this causes the complications indicated in the IME submission. Action in the House HR 1680 was brought to the floor of the House on October 23, 2007. It was discussed for less than 40 minutes; discussed, not debated (Congressional Record H11864-6). Four speakers rose to address the issues associated with this bill. All four speakers were from the Homeland Security Committee and all four, two Democrats and two Republicans, enthusiastically supported the bill. After the conclusion of the ‘debate’ the bill passed in the House on a voice vote. The next day the bill was received in the Senate and referred to the Committee on Homeland Security and Governmental Affairs. There is no record of any additional action taking place on this legislation until identical provisions showed up in the Omnibus Budget Bill in late December 2007 (see: “DHS and the Omnibus Spending Bill”). Adding homeland security legislation that passed in the House to spending bills is a tactic that Chairman Thompson has both advocated (see: “House Passes HR 4806 and HR 6193”) and used to good effect. It makes tracking the legislative history of a bill a tad bit more difficult. We can expect to see the same thing in the future.