Comments on Ammonium Nitrate ANPRM – 01-30-09

The comment period has been closed for over a month on the Ammonium Nitrate ANPRM, but it looks like the comments are continuing to roll in. The four comments reviewed in this posting bring the total to 38 submissions. Those comments came from: Southern States Cooperative Nebraska Agri-Business Association Larry Ostby Honeywell International Southern States Cooperative Comments SSC is a producer of urea based fertilizers that are a potential substitute for ammonium nitrate based fertilizers. They believe that handlers of ammonium nitrate should be required to obtain an identification card based on the TWIC model. They specifically note in their comment that agents picking up ammonium nitrate should be required to obtain their own identification card. Nebraska Agri-Business Association Comments The NA-BA would like to see registration for sellers of AN be business level registration rather than individual employees and recommends that that registration be transferable when the business is sold. They recommend that the program be administered through the State Departments of Agriculture because they already are administering the US EPA fertilizer programs. The NA-BA expressed their extreme concern about the current sales of AN on EBay and other internet based sites and believes that DHS should shut down such sales immediately. The NA-BA believes that the blank application documents should be controlled to prevent terrorist from getting hold of them; they recommend that such applications not be made available through the Post Office. Larry Ostby Comments Mr. Ostby is a farmer that uses AN fertilizer. He expresses his concern that any regulatory process considered would be time consuming and impair his ability to make timely purchases of AN. He notes that distributors of AN fertilizer have long standing relationships with their customers and believes that this provides adequate protection against terrorist acquisition of AN. Honeywell International Comments Honeywell would like to see any AN product that has been certified as a Qualified Anti-Terrorist Technology (QATT) by DHS exempted from the requirements of this proposed rule. They note that their Sulf-N® 26 fertilizer has been so certified under the Support Anti-Terrorism by Fostering Effective Technologies (SAFETY) Act of 2002. My Comments on Comments The corporate comments were all dated before the deadline for filing comments. There is no telling when they were actually received by DHS, but all four comments were just posted to the Regulations.gov site on Thursday. Hopefully, they were actually received in time for their comments to be included in the review that leads up to the writing of the draft regulations. It is interesting to note that two of the commentors reviewed here have a commercial stake in the detailed, complex regulation of explosive AN fertilizer. Their comments make perfectly clear that they stand to gain from their sales of alternative fertilizers. There is absolutely nothing wrong with this, in fact DHS specifically solicited comments about alternatives to AN. The IST proponents in the audience would certainly point out the best way to stop AN from getting into the hands of terrorists would be to stop manufacturing/selling the material. Both commentors are to be commended for making their commercial interest clear in their submission. The comments filed by Mr. Ostby are certainly pertinent to the DHS regulatory effort. Any regulations that impede the timely sale and delivery of AN to legitimate users of the material would be contrary to the Congressional intent of the regulations. Other than the time needed to complete the registration process, there is no need for these regulations to affect the timely sale and delivery. DHS does need to insure that there is an adequate outreach program to farmers and that the registration process be opened well before the start of the season for application of these fertilizers. The comment about the internet sales of AN is probably overblown. AN is certainly available for sale over the internet. Those sales would be covered by the proposed regulations as long as the seller was located in the US. DHS should probably look at how they will regulate cross border sales of AN, but that is an issue for the Customs and Border Protection folks. Enforcement of internet sales may be a tad bit tricky, but that is a general problem for the enforcement community at large. The government is going to have to develop methods of tracking the internet sales of a large number of regulatorily controlled materials; AN will be only a small part of that effort.

Comments on Ammonium Nitrate ANPRM – 01-09-09

The comment period has closed on the Ammonium Nitrate ANPRM and it looks like the comments have effectively stopped coming in. The ten comments reviewed in this posting bring the total to 33 submissions. The ten submissions were from: Minnesota Dept of Agriculture Kennecott Utah Copper Corp Jeffrey Kalmus, et al, Harvard University Aaron J. Hicks Air Liquide USA AgriBusiness Association of Kentucky Oklahoma Department of Agriculture Food and Forestry Kentucky Farm Bureau American Farm Bureau Federation Meherrin Ag and Chemical Minnesota Dept of Agriculture Comments The Minnesota Department of Agriculture (MDA) is responsible for the administration of the Minnesota Fertilizer Law (Minn. Stat. 18C) that “regulates the storage, handling, distribution, and disposal of fertilizer in the state”. There are no provisions in that law for the type controls envisioned in the ANPRM. The MDA does not want responsibility for administering the Federal program unless DHS “provides sufficient funding to fully support the administration and compliance monitoring activities”. Kennecott Utah Copper Corp Comments Kennecott would like to see DHS exempt users of blasting grade ammonium nitrate that are registered with the ATF from the DHS registration process. They would like any ammonium nitrate classified as a Class I explosive by DOT to be exempted from these rules. They also note that accurate inventories of bulk prills of ammonium nitrate are ‘impractical and virtually impossible to implement’. Jeffrey Kalmus, et al, Harvard University Comments This ‘comment’ is an undergraduate class project on “Quantitative Approaches to Public Policy Problems”. As you might expect it is a rather lengthy discussion of the problem of how to appropriately regulate ammonium nitrate. I would recommend reading it to anyone that is interested in the issue, but doubt that it will provide much actual assistance to DHS in establishing the rules required by the Congressional mandate. This would have been better submitted to the House Homeland Security Committee when they held hearings two years ago. Aaron J. Hicks Comments Mr. Hicks recommends that DHS set a lower limit of 50 lbs of AN to be covered by this regulation. He notes that there are a number of uses of AN below level that would be adversely impacted with no effective impact on terrorist use. In particular he notes that the ornamental agricultural industry uses small amounts of ammonium nitrate in plant tissue culture labs. He notes that personnel in those labs are totally unaware of these impending regulations. Air Liquide USA Comments Air Liquide uses AN to produce nitrous oxide. They express concerns about the language of the registration process and ask how many of their personnel will have to register with DHS to effect their normal acquisition process of ordering and accepting delivery of AN. They would also like to see closer coordination between these efforts and the CFATS process that also regulates the security of AN. AgriBusiness Association of Kentucky Comments ABAK would like to see registration through a variety of means and agencies, including Extension Offices and State Fertilizer Control Office with blank forms being available at AN Dealers. ABAK notes that the average age of farmers in Kentucky is over 50 and there are many areas without affordable high-speed internet access, so an internet based regulatory framework may not be workable. ABAK does not believe that DHS has been authorized to, nor should it, look into substitutes for AN. ABAK suggests that compliance audits can be best completed by the State Fertilizer Control Office. ABAK notes that it is “important that a sensible timeframe for adoption of the rule be established in order to allow all affected parties to prepare for implementation”. Oklahoma Department of Agriculture Food and Forestry Comments ODAFF recommends that the regulation of ammonium nitrate be delegated to the state fertilizer control official. That agency in Oklahoma has been regulating the sale of AN since April, 2005. Kentucky Farm Bureau Comments KFB recommends that registration take place electronically through the Cooperative Extension Service and AN Dealers and note that the process should be simplified to the greatest extent possible. They recommend that the state fertilizer control agencies be used to maintain databases of registered AN users. They recommend that registered users be allowed to list their representatives (farm workers) that are authorized to physically pick-up the AN from dealers. American Farm Bureau Federation Comments The AFBF notes that the rules should be administered by the state fertilizer control official who already oversee various state and federal programs concerning fertilizers. The AFBF notes that many farmers that us AN never take physical possession of the AN, rather they use third-party custom application services. AFBF does not believe that such farmers should be required to register in the AN program. AFBF recommends that farmers that do register be allowed to designate authorized representatives to actually pick-up the AN from dealers. AFBF feels that the costs of the AN registration and regulation should be born by DHS with no fees being charged to farmers or dealers of AN. Meherrin Ag and Chemical Comments Meherrin notes that “90% of Farmers today have access to the web and broadband is available to 99% of the nations zip codes”. They recommend on-line registration with assistance provided by the Cooperative Extension Service. Meherrin recommends that “DHS, TSA, TWIC and the FMCSA need to work together” to come up with a registration id card for ‘truckers, dock workers, farmers and retail/wholesalers’. My Comments on Comments It is very interesting in seeing the divergence in views about the computer literacy of the American Farmer and internet availability in rural areas. I especially like the fact quoted by many that ‘broadband service is available in 99% of Zip Codes’. I live in a Zip Code that has broadband service available to a very small fraction of the residents (not me, I am afraid). So that is a misleading statistic. The issue of small volume users of AN keeps popping up in the oddest areas. It brings up a generic question of how Americans get involved in the rule making process that so affects their lives. Most individuals have no ideas how laws get turned into rules or how they can participate in the process. Most business owners rely on the various organizations to which they belong to keep track of the development of new regulations. Fortunately, there are gadflies like myself that also watch the process. A number of commentors have suggested that farmers registered in the AN program be allowed to designate employees to pick up their AN. This certainly sounds reasonable, but it also would seem to be a huge potential loophole in the regulation of possession of AN. This would allow personnel that were not vetted by DHS to pick-up large quantities of AN; the very thing that the authorizing legislation was attempting to avoid. On the other hand, turn-over in farm workers can be pretty high; so that would cause registration problems. DHS has certainly got its work cut out for it in trying to make reasonable rules to regulate this very commonly used material. Good Luck guys.