Ammonium Nitrate Security Program NPRM – Record Keeping

On August 3^rd DHS published their Ammonium Nitrate Security Program (ANSP) notice of proposed rulemaking (NPRM). This blog post is part of a continuing series that looks at provisions of that NPRM. This post looks at the requirements for reporting loss and/or theft of ammonium nitrate. Previous posts in this series included:

Ammonium Nitrate Rule Announced

Ammonium Nitrate Security Program NPRM - Introduction

Ammonium Nitrate Security Program NPRM - Registration

Ammonium Nitrate Security Program NPRM – Purchaser Verification

ANSP Commentary – Importation Not Covered

Ammonium Nitrate Security Program NPRM – Record Keeping

Who Reports

Subtitle J provides the legal requirement that any AN Facility Representative or Designated AN Facility POC with knowledge of a theft or unexplained loss must report that loss to Federal law enforcement authorities within 24 hours. Since it is unlikely that these individuals will have total first-hand knowledge of everything that goes on at the AN Facility, the facility management is required to have procedures in place to ensure that internal reports of theft or loss are forwarded to the AN Facility Representative or POC in a timely manner.

Subtitle J did not provide a requirement for AN Purchasers or agents acting on their behalf to report theft or loss of AN so DHS cannot require them to do so in this regulation. DHS does, however, take the opportunity in the preamble to encourage “them to do so using the same procedures that AN Facility personnel would use” (76 FR 46933).

Reporting to ATF

Since ISCD, which will administer the ANSP, does not have criminal investigative personnel on staff, it wouldn’t make much sense to have AN theft or loss reports go directly to them. This regulation would require the report to be made to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). This reporting would follow standard ATF procedures; requiring an initial telephonic notification with follow-up reporting to be conducted by submitting a completed form via FAX or US Mail.

While the underlying law does not require AN Facilities to report the theft or loss of ammonium nitrate to local authorities in addition to the required Federal notification, DHS does encourage facilities to make the local report as well. From a practical perspective, in most cases local law enforcement personnel will be able to respond to the crime scene quicker and may be able to intercept the perpetrators before the ATF personnel are even able to respond to the scene.

How Much to Report

In determining the quantity threshold that requires reporting, DHS looks at two different situations. The first situation is where there is a clearly defined theft of AN; any amount stolen would have to be reported. The second situation, where there is a known or suspected loss of AN due to an unidentified cause, the situation becomes more complicated.

That complication arises because AN is frequently shipped in bulk. Bulk shipping losses are a well-known problem in the industry and the amount that is routinely lost during these shipments varies on the type transportation used, the length of the transport, the weather and a number of other issues. So DHS will require loss reporting when “those losses deviate from the amount of loss that typically occurs during routine production, storage, transportation, or use of ammonium nitrate” (76 FR 46934).

Commentary

I understand the Department’s reasoning in selecting the ATF as the designated agency to handle the investigation of ammonium nitrate thefts and losses. They are typically the lead agency in matters relating to explosives. I do think, however, that DHS has missed an important intelligence gathering opportunity by the way they handle the reporting process.

The initial telephonic report to ATF is probably the way to go with that portion of the process. The follow-up written report would probably be better off submitted through the secure ANSP web site. The site will already be established and the AN Facility personnel will already be familiar with it. If the reporting format were established as tool on that web site (akin to the tools in the CSAT website used by the CFATS program) the information could be electronically sent directly to ATF. At the same time it could be sent to the intelligence folks at DHS for further analysis. Of course I would prefer to see it sent to a yet to be established Chemical Security Fusion Center, but that is fodder for another blog post.

A more fundamental problem exists with the loss reporting requirements. I fully understand the problem with ‘normal losses’ incident to transportation and handling. The problem is that without defining ‘normal losses’ DHS is setting up a situation where they will, in effect, be encouraging facilities to use the widest possible definition of that terminology to avoid the headaches associated with loss reporting.

The only way that I see around this problem is to add a requirement for a routine, periodic report on ‘normal losses’ at the facility. Again, a reporting tool on the ANSP secure web site would help to make this requirement as painless as possible. This would ensure that each facility was keeping the records necessary to be able to define what was a ‘normal loss’ that did not require reporting to the ATF.