Ammonium Nitrate Security Program NPRM - Introduction

Well, yesterday Secretary Napolitano ‘officially’ announced the publication of the DHS Ammonium Nitrate Security Program (ANSP) NPRM. Today the Federal Register did the real official publication (76 FR 46908-46957) of the NPRM. The NPRM is based upon authority provided in another DHS appropriations bill; §563 of the FY 2008 DHS Appropriations Act (PL 110-161). This time the authority did actually revise the Homeland Security Act of 2002 by adding Subtitle J, sections 899A thru 899J (6 USC 488 thru 488i).

In accordance with the provisions of Subtitle J the NPRM would establish 6 CFR Part 31 with the following subparts:

• Subpart A — General

• Subpart B — Registration of AN Purchasers, AN Sellers, AN Facility Representatives, and Designated AN Facility POCs — General

• Subpart C — Point of Sale Requirements

• Subpart D — Reporting Theft and Loss

• Subpart E — Inspections and Audits

• Subpart F — Civil Penalties

• Subpart G — Adjudications and Appeals

• Subpart H — Other

Public Comments

DHS is soliciting public comments on the proposed regulations in general and has identified many specific issues that it would like to see addressed in those comments. Comments on the regulations may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket DHS-2008-0076) and those comments should be submitted by December 1^st. Since the ANSP regulations will require registration, DHS has included an information collection request (ICR) notice in this proposed rule notice (76 FR 46946-46949). Comments on that ICR may be emailed to oira_submission@omb.eop.gov (include the docket number and ``Attention: Desk Officer for Department of Homeland Security/NPPD'' in the subject line of the e-mail).

Definition of Ammonium Nitrate

Since the purpose of the ANSP is to regulate the sale and transfer of ammonium nitrate (AN) to prevent the use of AN in an act of terrorism it is important to define what constitutes regulated ammonium nitrate. Section 31.105 uses a three part definition:

Solid AN – chiefly the ammonium salt of nitric acid containing a minimum of 33% Nitrogen by weight

AN Mixture – any mixture containing 30% solid AN

Not AN – The following are not considered to be AN under this regulation:

• Mixtures that are classified as explosives under 27 CFR 555.11;

• Solid AN or AN mixture weighing less that 25 lbs.; or

• Cold Packs - small, commercially-available packages commonly used as a replacement for ice in the application of first aid, containing unmixed water and ammonium nitrate.

Readers of this blog that are familiar with the CFATS chemicals of interest (COI) list will probably recognize that the definition of an AN Mixture is slightly different from that found in Appendix A to 6 CFR Part 27. The CFATS regulations call for a mixture to contain at least 33% AN instead of the 30% standard proposed here. In the preamble to this rule (76 FR 46915) DHS explains that this is due in part to the slightly different approaches to preventing terrorist attacks using AN. Additionally, the Department notes that the drafters of this NPRM had new data available about the potential use of the lower concentration “as components of viable explosives”.

It will be interesting to see if the informal group that is currently looking at the revision of the CFATS Appendix A list of COI will be considering this new information to determine if the mixture rule for AN needs to be updated in the CFATS program.

Registration Requirements

I’ll look at the registration requirements in this proposed rule in a future blog posting.