Monday, December 8, 2008

Comments on Ammonium Nitrate ANPRM – 12-05-08

It has been almost a month since my last update on the comments for this ANPRM. Finally there is a, one, singular additional comment that has been filed on this proposed rule. Normally I would not report on a single comment, but this comment from Paul H. Fennewald brings up a couple of issues that are worth discussing. Mr. Fennewald notes that he has more than 20 years experience in government counter-terrorism and two years working in the US Army Explosive Ordinance Disposal (EOD). Terrorists Will Not Buy ANFO Mr. Fennewald notes that it is unlikely that terrorists would legitimately purchase ammonium nitrate fuel oil (ANFO) blends that can be used as an explosive. He says that terrorists “are criminals, and will utilize whatever means they can devise to create the carnage associated with a terrorist attack. If they cannot purchase the tools they need to ply their deadly trade, they will steal, improvise, or find some alternate means to accomplish their objectives”. Of course, we can point to a successful terrorist attack here in the United States where an ANFO explosive was used. The Oklahoma City bombing used ammonium nitrate that came from purchases from legitimate retailers. That attack could have been carried out with stolen ammonium nitrate, but that would have added additional complexity to the plan and made it easier to detect and prevent. There are alternative explosives that can be made, but for a large scale attack using a vehicle born improvised explosive, nothing will beat ANFO for ease of construction and safety of use. That combined with the widespread availability of ammonium nitrate, makes ANFO a nearly perfect terrorist weapon. If tightening up on ammonium nitrate sales makes potential terrorists switch to less widely available materials that are more hazardous to the bomb-maker, then that is a good thing. If terrorists have to use smaller bombs or we lose some bomb makers to clumsiness or stupidity, the world is a safer place. Bureaucratic Quagmire Mr. Fennewald calls this rule “just another ‘feel good’ bureaucratic quagmire that will do nothing other than add cost and frustration to an already overburdened end userof the material you are proposing to additionally regulate”. True, this proposed rule will cause some problems for legitimate users and sellers of ammonium nitrate. The purpose of this ANPRM is to help DHS make that rule as painless as possible. I think that there is a basic misunderstanding of how these rule making procedures work. DHS did not think up the idea for this regulation. They were directed by Congress {2008 Consolidated Appropriations Act, Subtitle J § 563 (PL 110-151)} to prepare this rule. Congress, in its collective wisdom, decided that uncontrolled ammonium nitrate was too much of a risk. They directed DHS to set up rules requiring the registration of sellers and buyers of ammonium nitrate and to make it illegal to transfer ammonium nitrate to an unregistered party. Now DHS has to write the rules that will implement those requirements in the least intrusive manner possible. That is why DHS provided almost two full pages (pages 64281-3) of areas that they would like the public to comment upon. Public comments that do not address any of these issues will do little to help DHS formulate regulations that intrude on commerce as little as possible. Comments that tell DHS that they should not be writing these regulations do no good; DHS is required to write the regulations and only Congress can rescind that requirement.

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