The U.S. Department of Homeland Security (DHS) issued an Advanced Notice of Proposed Rulemaking (ANPR) for the Secure Handling of Ammonium Nitrate Program in the Federal Register on Oct. 30. The ANPR seeks industry comments on the new regulations, which will require DHS to regulate the sale and transfer of AN to enhance security and keep the product out of the hands of terrorists or those with criminal intent.
Both The Fertilizer Institute and the Agricultural Retailers Association supported the Secure Handling of Ammonium Nitrate Act and lobbied for its passage. Both organizations told Green Markets last week that they will be drafting and submitting comments in response to the ANPR, and ARA sent a notice to members soliciting their input.
Congress enacted the Secure Handling of Ammonium Nitrate Act on Dec. 26, 2007. The legislation amends the Homeland Security Act of 2002 by requiring DHS to ”regulate the sale and transfer of ammonium nitrate by an ammonium nitrate facility…to prevent the misappropriation or use of ammonium nitrate in an act of terrorism.” DHS also derives its authority for administering the rules under the Chemical Facility Anti-Terrorism standards (CFATs), which were approved as part of the Homeland Security Appropriations Act of 2007.
As reported previously by Green Markets, the Secure Handling of Ammonium Nitrate Act requires AN facilities and prospective AN purchasers to apply for registration numbers from DHS in order to sell, transfer, and /or purchase AN, and authorizes DHS to conduct checks of identifying information to all prospective registrants against identifying information that appears in the Terrorist Screening Database. DHS would issue or deny registration numbers within 72 hours of receipt of a completed registration application from an AN facility or purchaser. The rule also provides for an expedited appeals process with a turnaround of 72 hours for applicants denied a registration number.
Under the rule, AN facilities would have to verify that potential AN purchasers are registered with DHS by checking the purchaser’s AN identification and registration number. All AN facilities would be required to keep records of sales or transfers of AN for at least two years after each transaction, with penalties for failing to maintain records. AN facilities and AN purchasers would also be required to report the theft or loss of AN to Federal law enforcement officials within one calendar day of discovery of theft or loss.
DHS also has authority under the rule to conduct or oversee regulatory compliance inspections and audits of AN facilities’ records to ensure that regulated facilities are properly maintaining records and following requirements of the AN registration program. DHS plans to develop guidance materials and posters detailing the registration program requirements and penalties for violations. DHS has the authority to assess civil penalties of up to $50,000 per violation of the regulations.
DHS also noted in the Federal Register that it will determine a threshold percentage of AN in a substance as a prerequisite for that substance to be considered AN fertilizer for the purposes of the AN registration program.
Specifically, DHS said it seeks comments on how registration applications should be submitted and how registration letters or certificates should be distributed; the best methods for verifying the identity of any AN purchaser, as well as the identity of designated agents purchasing AN on behalf of registered AN purchasers; the detonability of AN at certain concentrations; the viability of AN fertilizer alternatives such as Sulf-N 26, the patented product recently unveiled by Honeywell (GM Sept. 29, p. 1); how best to conduct or oversee regulatory compliance inspections and audits of AN facilities’ records; the likely economic impact of the regulations on state and local governments, agribusinesses, AN manufacturers, importers, packagers, distributors, retailers and farmers; ideas for a fee structure to address some or all of the costs of the program; benefits of the program, and alternative methods of complying with the legislation; and additional ideas for enhancing AN security through interaction with state and local governments.
Written comments must be submitted to DHS on or before Dec. 29, 2008. Comments can be submitted through http://www.regulations.gov, Docket # 2008-0076, or by mail at the following address: U.S. Department of Homeland Security, National Protection and Programs Directorate, Office of Infrastructure Protection, Infrastructure Security Compliance Division, Mail Stop 8100, Washington, D.C. 20528.