Monday, December 29, 2008

Comments on Ammonium Nitrate ANPRM – 12-26-08

We continue to have an increasing, yet hardly overwhelming, number of comments on the advance notice of proposed rule making issued by DHS for the regulation of the sale and transfer of Ammonium Nitrate. This last week there were comments posted by six organizations. Those commentors were: 

The Fertilizer Institute Comments 

TFI believes that the AN program should be administered through the State fertilizer control offices with DHS limiting their function to conducting the terrorist database searches for the states. TFI recommends that the State FCO’s conduct the inspections and audits as they are already doing so for most of the distributors. This would leave DHS to audit the State offices. TFI suggests that registration take place at local Cooperative Extension Offices and through the US Mail, local distributors could keep blank registration forms on hand to submitted via mail. TFI volunteers to help distribute posters and brochures explaining the program to end users of AN. 

Northwest Mining Association Comments 

The NMA suggests that DHS use the authority provided in the legislation to exempt AN explosive sales and transfers to ATF licensed personnel from the registration provisions of the proposed regulations. The NMA comments that requiring purchasers to report thefts and unexplained losses exceeds the authority provided in the legislative background. They also suggest that the terms ‘unexplained losses’ need to be better defined and need to take into account the normal losses found during the handling of bulk AN. 

Agricultural Retailers Association Comments 

The ARA suggests that any registration program be a web based program, allowing registrants access through their personal internet connection or through their Local Cooperative Extension Service office. ARA suggests that DHS should use the accepted industry definition of solid ammonium nitrate fertilizer containing at least 33% nitrogen by weight for the material regulated under this rule. ARA argues against DHS favoring the use of a substitute for AN fertilizer. ARA is concerned that a proposed $50,000 fine for a simple record keeping error or late filing would drive distributors to stop carrying AN fertilizers. 

National Mining Association Comments 

The NMA suggests that DHS should use its statutory authority to exempt entities licensed by the ATF from the registration requirements of this rule. The NMA objects to DHS expanding their statutory authority by requiring purchasers to report theft and losses of AN. It notes that the ATF already requires their licensed users to report thefts within 24 hours. 

Cornell University Comments 

The comments provided by Cornell University address the small amounts of AN used in research settings and questions if DHS intends to include those small (typically 1-lb bottles) quantities in the proposed regulations. 

Wyoming Ag-Business Association Comments 

The WABA notes that two crops in Wyoming use ammonium nitrate fertilizer, sugar beets and hay grass. They note that the Wyoming legislature is attempting to set up a state regulatory program for ammonium nitrate fertilizer, but are waiting for appropriate guidance from DHS. The WABA urges rapid adoption of the final rule to allow for implantation in time for the upcoming fertilizer application season. 

My Comments on Comments 

The commentors are providing a great deal of good information to DHS to consider in their rule making process. The users of explosive AN all wish DHS to recognize the registration of users of explosive AN by the ATF in the proposed rules. They all note that the registration requirements of the ATF exceed those discussed for AN fertilizer registration. And they all note that the authorizing legislation specifically allows for such an exception. 

The suggestion of the Fertilizer Institute to use State Fertilizer Control Offices (FCOs) to do the grunt work of the regulatory process certainly seems to be a useful idea. Since they are presumably already working with the distributors and end users of fertilizer AN it would make sense to use the existing bureaucracy instead of setting up a new one. The major draw back to this is that DHS would have to negotiate with 50 FCOs to set up the funding for the program. Still it appears to be worth investigating. The WABA comments about getting something set-up quickly seems to be a recipe for finding a whole host of unintended consequences. 

What DHS should probably do instead is announce that it does not intend to have regulations in place before July 1st and not be effective before October 1st (dates are examples not necessarily actual dates to be used). This would allow the industry to get the 2009 manufacture, distribution and sale of AN under way without undue concerns about the application of these rules. 

Anyone that has watched the CFATS implementation would be very surprised if DHS could get rules written, a registration system in place, and everything running smoothly in time for spring application of fertilizer. DHS needs to make clear to the AN fertilizer community that they can expect a reasonable introduction schedule of useable rules. In turn, the same community should be aggressive in self-policing in the mean time to help protect the overall society from this potential threat.

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