As I
noted last week, the catastrophic explosion in Beirut, which may have been
the result of a fire in an ammonium
nitrate storage facility, has resulted in Rep Thompson (D,MS), Chair of the
House Homeland Security Committee, calling for DHS to complete the rulemaking
on the Ammonium Nitrate Security Program, required by 6
USC Part J – Secure Handling of Ammonium Nitrate.
As I have
explained before, that rulemaking is stalled because the cost-benefit analysis
provided in the notice of proposed rulemaking makes it clear that the
rulemaking is cost effective. In large part this is due to the requirement in
§488a to register everyone that would buy ammonium nitrate, or act as an agent
of someone buying ammonium nitrate from registered ammonium nitrate facilities.
These requirements are not something that DHS or CISA (the action agency for
the Ammonium Nitrate Security Program (ANSP) can change. Thompson, however, is in
an excellent position to address the deficiencies in the legislative requirements
for the program.
With that in mind, I would like to suggest some changes that
could be made to Part J that would correct this and other problems noted in the
comments received in the rulemaking process.
Definitions
Section 488 provides the definitions used in this Part and
there are three changes to definitions in this section. First, the definition
of ‘ammonium nitrate should be revised to provide clarity that it does not
include any materials that are already regulated as ‘explosives. This can be
accomplished by adding at the end of §488(1) a new subparagraph (C):
(C) “does not include any
mixture regulated under §27 CFR Part 555.”
The second definitional change that should be made would be
to resolve the issue where an individual could be both ‘an ammonium nitrate facility’
and ‘an ammonium nitrate purchaser’ depending on which side of a transaction
they are in a given moment. This could be done by making the following
modification to the definition of ‘ammonium nitrate purchaser’:
(3) Ammonium nitrate purchaser
The term ‘‘ammonium nitrate
purchaser’’ means any person who purchases ammonium
nitrate from an ammonium nitrate
facility that is not
registered per this Part as an ammonium nitrate facility.
Finally, there was some concern from a number of commenters about
the use of the term ‘unexplained loss of ammonium nitrate’ in §488d.
Depending on the packaging mode a 50-lb could reasonably be determined to be an
‘inventory error’ not missing material. In instances where bulk shipments by barge
are being discussed, it is apparently routine to have thousands of pounds being
blown of the barges by the wind. Thus, ‘unexplained loss’ needs to be tied to
the packaging/transport mode of the material. With that in mind, we could add the
following definition of that term in this section:
(4) Unexplained Loss of Ammonium Nitrate
The term ‘unexplained loss of ammonium nitrate’ means a
negative change in inventory of ammonium nitrate in an amount set for each type
of packaging (bags, bulk bags, and bulk) by the Secretary, after notice and an
opportunity for comment, that does not have a readily apparent cause.
Regulation of the sale and transfer of ammonium nitrate
Section §488a
is where the bulk of the proposed changes are going to be required. The first
item that needs to be addressed is the issue of what ammonium nitrate mixtures
(other than registered explosives that were addressed above) would be covered
by the ANSP. The original language required DHS to establish what percentage of
ammonium nitrate in a mixture would be covered but did not address what the de minimis
amount would be. With that in mind I would suggest the following change to
§488a(b):
(b) Ammonium nitrate mixtures
This is the section of Part J that deals with the requirement
to register purchasers of ammonium nitrate that I am proposing to remove. To delete
this requirement, paragraph (d) would have to be deleted as would all
references to “(d)” in the remainder of the section. Additionally, the
renumbered paragraph (d), Records, would require a change to subparagraph
(2)(B):
(A) record the name, address, and telephone number, and
registration number issued under subsection (c) or (d) of each
person that purchases ammonium nitrate, in a manner prescribed by the
Secretary;
While the earlier change to the ammonium nitrate definition
would exempt regulated explosive mixtures from coverage of Part J, it would not
specifically exempt explosive manufacturers from coverage under this part. This
could be accomplished by modifying paragraph (f), Exemption for explosive
purposes, to read:
(f) Exemption for explosive
purposes
The Secretary may will exempt from this
part a person producing, or
selling, or purchasing ammonium nitrate exclusively for use in the
production of an explosive under a license or permit issued under chapter 40 of
title 18.
This change will retain the reporting requirement for covered
facilities selling ammonium nitrate to regulated explosives manufacturers, but
that should have no practical effect on those regulated manufacturers.
The final change deals with another issue that was raised
during the rulemaking comment process, that of the requirements dealing with
vetting people against the terrorist screening data base. In the same manner
that we saw with the CFATS personnel security vetting, a number of commenters wanted
DHS to acknowledge the fact that many of the people involved in the regulated
universe would already have been vetted by one or more DHS programs. To deal
with that I would suggest changing the current wording of paragraph (i)(2)(A)
to read:
(A) Check required
(i)The Secretary shall conduct a check of
appropriate identifying information of any person seeking to register with the
Department under subsection (c) or (d) against identifying information
that appears in the terrorist screening database of the Department,
(ii) The Secretary will accept information about current
status of other programs administered by the Department where identification is
vetted against the terrorist screening database of the Department, in lieu of
requiring new information being submitted on those individuals.
Other Matters
When Thompson pushed through the language that is now Part
J, he included provisions requiring the regulations to be developed within 90-days,
while still requiring the normal publish and comment rulemaking process for the
regulations. This established a standard that could not be met and set the
stage for the slow rulemaking process that resulted.
I would assume that Thompson still wants quick action on the
revised rulemaking. With that in mind I would suggest that the legislation include
wording to require DHS to publish a revised NPRM within six months of the
rulemaking being adopted, with the final rule being published a year later.
This would still be a tight schedule, but CISA has already done much of the
hard work on the rulemaking; most of the remaining work is trimming language and
recalculating costs.
Keep in mind that this Part is still a security program not
a safety program. There is nothing in the original language or my proposed
changes that would stop a catastrophic explosion at an ammonium nitrate storage
facility like the world saw in Beirut or the nation saw at West Fertilizer.
Those were apparently safety issues, not security problems. Those issues would
have to be dealt with separately. This revision of Part J would just make it easier
to stop people from legitimately acquiring ammonium nitrate for nefarious purposes.
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