DHS Publishes Ammonium Nitrate NPRM

This week, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking (NPRM) for an Ammonium Nitrate Security Program that would regulate the sale and transfer of ammonium nitrate, which is also a Chemical Facility Anti-Terrorism Standards (CFATS) Chemical of Interest (COI). 

Although both CFATS and the proposed Ammonium Nitrate Security Program share the goal of preventing terrorist activity related to ammonium nitrate, the scope of the two programs is quite different: CFATS is directed at the security of high-risk chemical facilities generally and has a much broader scope and application; the proposed Ammonium Nitrate Security Program, on the other hand, imposes certain limitations and conditions on the sale and transfer of ammonium nitrate specifically.

Following the Oklahoma City bombing, the Bureau of Alcohol, Tobacco, Firearms and Explosives collaborated with The Fertilizer Institute (TFI) and other members of the agriculture industry to create a voluntary program for reporting suspicious activities, including theft of ammonium nitrate. Kathy Mathers, spokeswoman for the TFI, noted that studies were conducted to determine if the explosive properties of ammonium nitrate could be made inert, only to find that it could not be accomplished. She indicated that over the years it became clear that a formal regulating program was necessary. “Mathers said of the proposed regulation, ‘We're lined up with Congress and DHS on this one.’"

For the Ammonium Nitrate Security Program, DHS defines “ammonium nitrate”, as:

• Solid ammonium nitrate that is chiefly the ammonium salt of nitric acid, that contains not less than 33 % nitrogen by weight; or
• Any mixture containing 30 % or more solid ammonium nitrate, by weight, that is chiefly the ammonium salt of nitric acid.  The solid ammonium nitrate in the mixture must contain not less than 33 % nitrogen by weight.

DHS does not consider the following to be “ammonium nitrate:”

• Mixtures containing less than 30 %  ammonium nitrate; or
• Mixtures classified as “explosives” under 27 CFR § 555.11; or
• Ammonium nitrate or mixtures containing ammonium nitrate weighing less than 25 pounds; or
• Cold packs.

Notably, this definition is different than the one listed in Appendix A to the CFATS, which sets a threshold of 33% ammonium nitrate rather of the 30% standard proposed in the NPRM.

Under the NPRM, certain ammonium nitrate sellers and prospective purchasers must apply for ammonium nitrate registration numbers from DHS in order to sell, transfer, and/or purchase the chemical. DHS will use the Terrorist Screening Database to vet each applicant, and must generally issue an ammonium nitrate registration number or deny the applicant’s registration within 72 hours of receipt. At the point of sale, ammonium nitrate sellers will be required to verify each potential ammonium nitrate purchaser’s identity and registration before completing the sale.

Ammonium nitrate facilities will be required to keep records of sales and transfers of ammonium nitrate for at least two years after each transaction. The NPRM defines an ammonium nitrate facility as “[a]ny person or entity that produces, sells, or otherwise transfers ownership of, or provides applications services for, ammonium nitrate.” The NPRM will also require ammonium nitrate sellers to report the theft or loss of ammonium nitrate to Federal authorities within one calendar day of discovery of the theft or loss.

In order to ensure compliance, DHS will conduct on-site and remote regulatory compliance inspections and audits of ammonium nitrate facilities’ records. DHS may assess a civil penalty of up to $50,000 per violation for non-compliance with the rule.

Chemical facilities that sell or transfer ammonium nitrate will now have to consider allocating additional resources to manage compliance with this forthcoming rule.  I’ll continue to monitor the issue closely and will provide any updates as they become available.

~ Ryan Loughin

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